The Scottish Government

« Previous | Contents | Next »

Listen

Review of the Code of Practice for Part 5
of the Adults with Incapacity (Scotland) Act 2000
and Related Issues: Analysis of Written Submissions to Consultation

Chapter 4 The desirability of variable assessment

Introduction

4.1 Point 1 concerns the concept of proportionality and the idea that the level of assessment should be dependent on the gravity of the proposed intervention. Respondents were asked whether they thought it would be possible to reflect the implications of treatment and interventions of greater and lesser gravity in the Code of Practice. For example, is it necessary to carry out the full assessment procedures recommended in the Code of Practice where, say, an intervention such as the administration of a flu immunisation or prescription of aspirin is concerned?

4.2 A variety of different comments were received in response to point 1. This chapter examines the arguments both for and against variable assessment, highlighting any common themes among interest groups. It contains a summary of the suggestions put forward by respondents for amendment of the Code, setting out possible courses of action.

Statistical breakdown

Table 4.1: Support for variable assessment, by interest group

n=93

Percentages do not add up to 100 due to rounding

4.3 Ninety-three responses were received to point 1, 73 of which included substantive comments or suggestions. Of those responding to point 1, the largest group was of the opinion that it would be possible to introduce some form of variable assessment, with 52 respondents supporting this suggestion, and a further 18 supporting it subject to qualifications. However, there was also a sizeable opposition to variable assessment, with 17 responses disagreeing with the proposition and a further 6 responses disagreeing subject to qualifications.

4.4 Opinions about point 1 tended to divide along interest group lines. While health professionals tended to agree with the proposition that variable assessment should be introduced, the voluntary sector was strongly opposed to the suggestion, and social work was divided as a group as to whether it felt this would be appropriate.

Reasons given by respondents who supported the introduction of variable assessment

4.5 The general feeling among healthcare professionals and hospital trusts was that it would be appropriate to introduce some form of variable assessment. The main benefit of this was the belief that it would cut down the amount of time spent completing certificates, reduce the workload of general practitioners and speed up the treatment of adults with incapacity.

4.6 A number of respondents commented that introducing variable assessment would be a practical and flexible response to medical treatment and the demands of the Act. This is illustrated by one respondent's statement that "medicine is not an absolute science and every patient is different and every situation is different" (Dundee LHCC Elderly and Rehabilitation Directorate). Thus the assessment of capacity should be dependent on each individual patient's condition and situation. The British Psychological Society Division of Clinical Psychology (Scotland) commented that the need for this flexibility was an inherent part of the Act which requires that the capacity of a patient should be assessed with regard to specific procedures and treatments, making it more sensible "to have different assessments to ascertain capacity in different situations".

4.7 One or two other respondents also commented that many doctors were already using some form of variable assessment procedure. For example, one comment from a consultant psychiatrist noted that some form of variable assessment was "probably the norm" and, as such, an "explicit statement" saying that this was allowed would be useful.

Reasons given by respondents who disagreed with the proposal that variable assessment be introduced

4.8 A number of respondents strongly disagreed with the proposal to introduce variable assessment procedures. They felt it would have a number of negative consequences, including harming the interests of adults with incapacity and opening doctors to the risk of being charged with assault. These reservations are discussed in the following sections.

Introduction of variable assessment risks harming the interests of adults with incapacity

4.9 The main concern about introducing a variable assessment procedure was that it would not be in the best interests of adults with incapacity. There was a feeling that the need to have a full assessment before a certificate is issued provides a safeguard for such individuals. If a variable assessment procedure were to be introduced, one concern, expressed by the Mental Welfare Commission, was that "there might be a tendency for the level of assessment to gradually diminish over time". This could lead to the views of the adults and their carers being ignored.

4.10 A clear illustration of the way in which respondents were worried that adults' interests could be ignored was provided by one individual, who, using the example of flu vaccination given in the consultation document, pointed out that "there is a group of people who do not believe in immunisation, on principle". It is only through a full assessment that a doctor may become aware of these views and so be able to make a decision about whether or not the vaccination should be administered.

4.11 A number of respondents were worried that variable assessment might lead to a repeat of poor practice, as there would be no assessment to monitor how treatments were progressing. This was especially a concern in cases involving continuing treatment.

4.12 A further concern was that doctors might interpret serious interventions differently from other health professionals, and therefore might not feel that certain treatments, which other healthcare professionals would define as serious, needed a full assessment. For instance, the Royal College of Speech and Language Therapists mentioned the example of a doctor who "did not define a full therapy programme as treatment", a view with which it clearly disagreed.

Many adults may be able to consent and therefore not need certificates

4.13 A third issue raised by a number of respondents was that the introduction of a variable assessment procedure would lead to certificates of incapacity being issued for adults who have the capacity to consent. Typical of this view was the point made by Alzheimer Scotland-Action on Dementia who stated

"with the use of good communication and listening skills, many people with incapacity will be able to consent to regular treatments and particularly those with which they are familiar"

To issue a certificate of incapacity in respect of these adults, just because they have dementia or a learning disability, would deny them the right to make decisions about treatment to which they have the capacity to consent.

4.14 In a similar vein, Sense Scotland commented that introducing variable assessment procedures based on the invasiveness of treatment could lead to the issue of certificates of incapacity to individuals who do have capacity. They argued that adults' ability to consent is determined by their familiarity with the treatment in question, and that adults may have the capacity to consent to a range of treatments that they have undergone previously. In light of this, they suggested that variable assessment should not be based on the invasiveness of the treatment, but rather on the patient's familiarity with the treatment. In making this argument they presented a table illustrating the "interaction between treatment and familiarity" (see Table 4.2).

4.15 Sense Scotland argued that a certificate might not be needed for treatment falling within either cell 1 or 2 of Table 4.2 because the patient is familiar with these treatments and therefore able to consent to them. However, a certificate would be needed for treatments falling within cell 3, even though the treatment is non-invasive, as the patient would not be familiar with these procedures and therefore would be unable to consent to them. The same would be true of the more invasive treatments falling within cell 4.

Table 4.2: Interaction between treatment and familiarity

Source: Sense Scotland

4.16 Sense Scotland's response is based on a particular interpretation of what is being referred to in the consultation document. Most respondents interpreted variable assessment as relating to adults who were incapable of consenting to the proposed treatment. However, Sense Scotland concentrated on whether adults were able to consent to the treatment in the first place. They put forward the argument that, in terms of the Act, it would not be appropriate for certificates of incapacity to be issued in respect of individuals falling within the scope of cells 1 and 2 who are able to consent to what is termed familiar treatment.

4.17 Sense Scotland also suggested that it would be useful to design a flowchart showing doctors the actions they should take after they have completed a consultation.

Variable assessment procedure is unworkable

4.18 A number of respondents across several groups felt that a variable assessment procedure would be difficult to implement, with comments such as that it would "seem almost impossible to give unambiguous guidance" as to where to "draw the line" (social work) and that this might lead to there being "grey areas" within the Act (NHS Trust).

Risk of doctors being charged with assault

4.19 Paragraph 2.2 of the Code of Practice states that one of the reasons for originally introducing Part 5 of the Act was that, previously, doctors treating patients without capacity were at risk of charges of assault. Some respondents were concerned that introducing variable assessment procedures might once again put medical practitioners at risk of prosecution for assault.

Treatment plans

4.20 A recurrent theme, especially in responses from the voluntary sector, was that nearly all the issues raised in the consultation document, and not only those examined in point 1, could be solved by the proper use of treatment plans.

4.21 Treatment plans are designed for people with multiple or complex health interventions and can cover any treatment that is foreseen during the duration of the certificate of incapacity. Treatment plans are attached to the certificate of incapacity and held in the adult's medical record. Included in a treatment plan could be a list of all the interventions and procedures that it is thought the adult might need, along with the medical practitioner's judgement about whether the adult is capable of consenting to these treatments. The Code of Practice makes it clear that this does not mean that every basic health care procedure must be listed; rather, it makes provision for a category of "fundamental healthcare procedures" to which it is felt that every adult is entitled (paragraph 2.20).

4.22 When formulating treatment plans, the medical practitioner should always follow the Principles of the Act and the views of others should always be taken into account. Those consulted should include a relative of the patient, the patient's welfare attorney or guardian or person authorised under an intervention order.

4.23 In responding to point 1, voluntary organisations commented that variable assessment is not needed; for example, Scottish Association for Mental Health ("SAMH") was of the view that

"some of the concerns expressed by doctors may be based on misunderstandings about how the Act should operate in practice. In particular, concerns expressed about assessments of capacity in relation to treatments such as flu immunisation or prescription of aspirin, seem to fail to take due account of the guidance in the Code of Practice about the use of Treatment Plans".

4.24 Similar comments were received from social work departments, psychiatrists, a number of individuals and the Nursing and Allied Health Professionals Renfrewshire and Inverclyde Primary Care NHS Trust.

Suggestions as to how variable assessement procedures could be introduced

4.25 The consultation document not only asked whether respondents felt that it would be possible to introduce some form of variable assessment, but also asked for suggestions for how the Code might be amended to allow this. A wide range of respondents put forward suggestions as to how this could be done, and these are summarised in the following section.

Provide a list of treatments that are excluded

4.26 There was a general view that the best way in which to introduce variable assessment into the Act would be to provide a list of excluded treatments as part of the Code of Practice. Those holding this view regarded variable assessment not as a sliding scale but rather as 2 groups of interventions; the first group, of more serious interventions, would require a full assessment, while the second group would require only minimal assessment or no assessment at all.

4.27 Suggestions for treatments to be excluded included continuing treatments, non-invasive treatments, diagnostic procedures, general medical services, oral hygiene, dental examinations, over-the-counter drugs, treatment of uncomplicated infections, care of pressure areas, treatments that were of obvious benefit and treatments that were of low risk.

4.28 Clinicians at one NHS Trust were of the opinion that

"all medical care carried out by a GP up to and including blood tests, prescription of intravenous fluids, flu immunisation could be covered by a single assessment which does not require to be repeated at yearly intervals provided the initial assessment agreed that the incapacity was likely to be progressive".

4.29 There were a number of comments about treatments that should not be excluded from assessment. Comments were made that "invasive or more serious non-reversible actions" should always be subject to assessment (social worker within Aberdeenshire Council).

Differing levels

4.30 There were also suggestions that procedures and interventions could be split into 3 groups. One NHS Trust suggested that healthcare be divided into 'primary' healthcare covering fundamental procedures, 'secondary' which would involve "understanding of specific treatments and their side effects" and 'tertiary' "understanding of specialised treatments/interventions, consent to research". At the primary level they suggested that there could be a GP checklist asking "questions such as 'do you know why you are coming to see me?'" At each level, if a doctor were unsure about the patient's capacity, then they could "seek additional support in confirming the decisions".

4.31 One dentist put forward a similar idea in relation to dental treatments, suggesting these could be divided up into 3 groups, namely "general dental procedures, non-reversible procedures and treatment under general anaesthetic" which would all be subject to different levels of assessment.

Sliding scale

4.32 One respondent saw variable assessment in terms of sliding scales. The Royal

College of Psychiatrists Scottish Division suggested that treatments could be divided

"along two axes, the first being the degree of risk from the proposed intervention and the second being the degree of consent that one would normally expect to obtain."

This sees the level of assessment as varying depending on each particular intervention, rather than there being one group of less invasive procedures that receive only a minimum assessment and another group of more invasive procedures which receive a full assessment.

Agreement to variable assessment procedure but subject to conditions

4.33 A number of respondents agreed with the introduction of a variable assessment procedure, but only if certain conditions were met. One such comment was made by NHS Education for Scotland, who stated that there would have to be "absolute clarity around definitions". Another respondent stated that it would be important to have "an itemised list of routine treatments" (social work department). The Royal College of Speech and Language Therapists suggested that any list of treatments to be excluded should be based on the input of all those healthcare professionals involved in treating adults with incapacity, as well as patient representatives.

4.34 Capability Scotland believed that variable assessment should only be used in "restricted circumstances" such as for the "continuation of existing treatment or a regular treatment". They also said that there should be "a maximum time limit between multi-disciplinary assessments". The Mental Welfare Commission suggested that for continuing treatment "which was initiated when the person was able to consent it seems reasonable that this treatment should continue afterwards as valid consent was given at one time".

4.35 One individual agreed with the concept of variable assessment but suggested that if an adult required a large number of minor medical interventions, that adult "might have to be assessed in the same way as an adult who faces a greater treatment".

4.36 A comment from a social work department was that it was important to consult with adults with incapacity to make sure that their views were taken into account; however, the respondent questioned whether "this responsibility (could) be taken by those caring for the adult".

CONCLUSION

4.37 Responses to point 1 divided by interest group. There was a clear view among healthcare practitioners that having to obtain certificates for minor interventions is time-consuming and that some treatments could be excluded from the necessity for a certificate. A solution to overcome these concerns, as suggested by a number of respondents from the voluntary sector and some social workers, was the utilisation of treatment plans.

4.38 The voluntary sector and some social workers were strongly opposed to the suggestion that certain treatments be excluded from the necessity for a certificate, stressing that variable assessment would expose adults with incapacity to risk, and in addition could expose healthcare practitioners to the risk of their providing treatment with questionable legal authority.

4.39 The debate over whether or not to introduce variable assessment can be summarised as the need to strike a balance among a number of considerations. The need to minimise any risk to adults with incapacity and also to healthcare practitioners has to be balanced against the benefits (principally efficiency savings) which would be a consequence of introducing variable assessment. If it is judged that the benefits outweigh any additional risks, then the case for the introduction of variable assessment would merit further examination and, in particular, the circumstances in which variable assessments would be appropriate would have to be given careful thought. Conversely, if the additional risks to patient and practitioner are judged to outweigh the benefits, then the case for variable assessments is weak.

4.40 The nature of the responses highlighted a certain divergence of opinion on and understanding of the meaning of the term "variable assessment" and this should be clarified if any form of variable assessment is to be introduced.

« Previous | Contents | Next »