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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 7 Possible extension of duration of the Section 47 Certificate

Introduction

7.1 This chapter looks at the arguments for and against extending the duration of a Section 47 Certificate. A number of respondents supported a specific time limit only subject to qualifications. These qualifications are examined, as are any other suggestions made by respondents.

Statistical breakdown

7.2 Ninety-seven responses contained comments about point 5, 67 of which were substantive. The general consensus among respondents was that the maximum duration of certificates of incapacity could be extended, with 35 respondents saying that this should be extended to 3 years and a further 26 respondents of the view that the certificate could be extended, subject to qualifications. Eleven respondents suggested that certificates could be extended indefinitely, though 2 of these added qualifications. Only 8 respondents felt that the maximum duration of the certificate should continue to be one year, although a further 13 said that it should be one year, subject to qualifications.

7.3 There was support for extending the duration of the certificate from all interest groups. However, social workers, hospital trusts and the voluntary sector tended to make their support subject to qualifications. This contrasts with the generally unconditional support of healthcare professionals for the proposal that the maximum duration of the certificate of incapacity be extended.

Table 7.1: Views on maximum duration of certificate, by interest group

N=97

Percentages do not add up 100 due to rounding

Reasons why the duration of Section 47 CERTIFICATES should continue to be one year

7.4 This section looks at the reasons given for the retention of a maximum duration of one year. A number of the responses were contradictory and gave reasons both why the duration of the certificate should be one year and why it should be extended to 3 years. This section includes all of the reasons as to why certificates should only last for a year even when the respondent's overall feeling was that the certificate should be extended.

Adult might regain capacity

7.5 A common comment from voluntary organisations, as well as from a number of other groups and individuals, was that the adult might regain capacity, thus rendering a 3 year certificate inappropriate. This was felt to be a particular risk for patients with "fluctuating capacity" (Alzheimer Scotland-Action on Dementia). A number of respondents suggested that, while a 3 year certificate might be appropriate for some patients, it would not be appropriate for patients with "fluctuating or unpredictable conditions" (social work).

7.6 Key Housing Association pointed out that even for adults "who may have been regarded as having a long-term/life-long condition causing incapacity" there is a chance that they "may actually become capable in a relatively short period of time". To illustrate this point they give the following example:

"a person with a learning disability living in an institutional environment with little one to one support, could, having moved in to a more intensively supported ordinary living environment acquire considerable confidence and skills in a short space of time".

Safety precautions

7.7 A concern that was expressed by several respondents was that extending the duration of certificates may weaken protection offered in the Act. One social work department commented that even patients who are unlikely to regain the capacity to consent, such as those with severe dementia, have their care arrangement reviewed at least once a year, and that it would not be unreasonable to review their capacity to consent to treatment at the same time.

7.8 It was felt that not having to fill in a certificate of incapacity every year could lead to situations in which treatment was not reviewed. Fife social work department gave the example of:

"an adult with significant learning disability and epilepsy cared for at home by an elderly relative. Repeat prescriptions for anti-convulsant medication may be all that is normally required and neither they nor their carer want to 'bother the doctor' to ask for further advice or assistance with a new need".

7.9 Having to renew a certificate once a year would ensure that the needs of people who may be particularly vulnerable are reviewed at least annually. The British Psychological Society commented that this conforms to the spirit of the Act, which requires people to be encouraged to develop and use their capacity.

7.10 One individual commented that 3 years might be "a reference to Guardianship". They wished to highlight that "Guardianship is made by application to and approval by the Court, while a Section 47 Certificate is made by a Doctor alone." This means, "there are far greater safeguards that protect Guardianship than protect certification". The certificate should therefore continue to only be valid for one year.

Good practice

7.11 A number of comments were also received to the effect that good practice required patients to be examined at least once a year, and as such it would be simple to assess capacity at the same time. Having to renew the certificate may also "emphasise the importance of regular review of health care for people with major degrees of incapacity" (The Royal College of Psychiatry and Greater Glasgow Primary Care Trust).

Reasons why the duration of the Section 47 certificate should be extended

7.12 The general consensus was that the maximum duration of Section 47 Certificates should be extended to 3 years. Respondents put forward a number of different arguments in support of this proposal and these will now be considered.

Some patients will not regain capacity

7.13 A comment made by a wide variety of different interest groups, including dentists, GPs, social work departments, medical protection societies, and hospital trusts, is encapsulated by this from a dentist, that "there are clearly some patients for whom ability to provide informed consent is likely to be absent without limit of time". These patients could be issued with certificates of a longer duration.

7.14 This view, though less common among voluntary organisations working with adults with incapacity, was also voiced by PAMIS, who said that "this is in line with the Act's principle of minimum intervention", commenting that some families of adults with incapacity would support certificates of a longer duration than 3 years.

Workload and cost implications

7.15 A number of comments were received to the effect that lengthening the duration of certificates would reduce doctors' workloads without harming the interests of adults with incapacity. This view was supported by a number of dentists, one of whom commented

"it is time consuming and very costly to repeatedly seek certification from a medical practitioner for every dental intervention" (dental nurse).

7.16 A concern related to the last point was that certificates are expensive. This view was expressed by a couple of dentists, one of who commented that at "90 per certificate" it was "an unnecessary waste of time and money…for a new certificate to be obtained every 12 months to certify that the same lifelong disability persists".

Enough safety precautions

7.17 A number of respondents commented that there were already enough safety precautions in place and therefore it would not harm the patient to extend the certificate of incapacity to 3 years. The Social Care Association of Scotland stated that "good practice principles would pick up any particular re-assessment needs where intervention was required". Another comment was that "there is still a medico-legal duty on the clinician to seek appropriate agreement from any proxy before each clinical intervention" (dentist). The BMA in its response pointed out "the Code of Practice explicitly states that should the adult's condition improve so that they regain capacity, a certificate should be annulled, regardless of its duration".

Re-certification harmful to adults with incapacity

7.18 Two respondents commented that re-certification might actually be harmful to the adult with incapacity. PAMIS stated that "the process can be distressing for the individual and their families and time-consuming for the doctor concerned".

A 3-year certificate would give greater flexibility

7.19 One NHS Board felt that lengthening the maximum duration of the certificate would make the Act more flexible and therefore better able to meet individual patients' needs. The Scottish Council on Human Bioethics suggested that "the duration of the certificate of incapacity should be directly related to the expected duration of the incapacity and to the envisaged treatment".

Qualifications

7.20 A common comment among respondents was that they would support certain time limits only subject to qualifications. This included respondents who would support one-year certificates if they were made more flexible, as well as respondents who would support 3 year certificates if added safety precautions were introduced.

One year with qualifications

7.21 A number of different suggestions were received about ways in which it might be possible to make the one-year certificate more flexible without extending it. Comments were also received about the exceptional circumstances in which it might be possible to extend the duration of a certificate.

7.22 The Greater Glasgow Primary Care Trust and the Royal College of Psychiatrists Scottish Division suggested: "there could…be an option to, without completing a new certificate, certify the extension of an existing one". Tayside Old Age Psychiatry commented that while the original certificate should only last for one year, after that it might be possible to extend the maximum duration of the certificate as:

"by the end of one year any reasonable doubts about the enduring nature of incapacity should have dissipated and an extended period would seem legitimate".

7.23 Another suggestion put forward was that, while "1 year should continue to be the norm", a longer period could be "certificated, providing it was justified on the certificate" (social work department). They suggested including "a separate box…for this longer time period, which could subsequently be subject to audit processes".

7.24 Key Housing Association Limited felt that a 3 year certificate "may weaken protection"; however, "if that freed up time for practitioners to do initial assessment/consultation work more fully this could be considered on balance to offer greater protection".

7.25 Capability Scotland made 2 points, firstly, "there may well be a case at some point in the future for greater flexibility of the upper time limits" however this decision can not be made "when there has been very little time to objectively study and review operation [of the Act]"; secondly, if the duration of certificates is extended "there must be statutory caveats that allow re-assessment on agreed criteria".

7.26 A comment made by several dentists was that it would only be necessary to extend the length of the certificate if dentists were not authorised to sign certificates.

Section 47 Certificates should last for 3 years subject to qualifications

7.27 Several suggestions were received as to additional safeguards that could be introduced if the maximum duration of certificates is extended to 3 years. These included the introduction of an annual review, the restriction of the extended certificate to certain conditions and the introduction of reviews that could be called for if it were felt that an adult's capacity had altered.

Annual review

7.28 Several respondents, including the Mental Welfare Commission for Scotland, felt that if the period of the certificate were extended "there should be the safeguard of an independent review (with advocacy/proxy input) at least once per year" (occupational therapist). One response suggested that the treatment plan especially should be subject to an annual review:

"[the treatment plan] needs to be a dynamic document and process and reflect the clinician's ongoing responsibility to satisfy him/herself that the person is capable or incapable, regardless of when the certificate was signed" (NHS Trust)

7.29 PAMIS was of the view that annual reviews should be "multi-disciplinary" and carried out "in collaboration with other professionals such as specialist learning disabilities nurses, allied health professionals, psychologists or social work staff."

Only for certain conditions

7.30 A recurrent response, especially among voluntary organisations and social workers, was that the maximum duration of the certificate should only be extended for certain conditions. These respondents felt that the proposal as stated in point 5, if implemented, would have the consequence of extending the duration of certificates for all conditions, which they did not feel was appropriate.

7.31 Suggestions were made as to which conditions a 3 year certificate would be appropriate for. South Lanarkshire Council Social Work Resources suggested conditions where there was "little or no prospect of capacity being regained". PAMIS suggested that certificates should only be extended for people who have been incapacitated from birth or for over 10 years, or "those diagnosed at an advanced stage of certain degenerative neurological conditions". They were of the view that "the Code of Practice should include definitions of the relevant conditions such as profound and multiple learning disabilities".

7.32 The National Autistic Society suggested:

"a sliding scale of duration is a better solution as it will ensure the time-length of certificates are tailored to meet the needs of individual adults and their conditions."

Additional Safeguards

7.33 Several other safeguards were suggested that could be introduced if the maximum duration of the certificate of incapacity were extended. One social work department suggested

"the nearest relative, and the primary carer should have a right to require a review of the certificate to be undertaken at any time during the second or third year it is in force, in the event that it appears to them that capacity may have been acquired, or regained" (social work department).

7.34 The Law Society of Scotland Mental Health and Disability Committee suggested that it would be "sensible to prescribe in regulations the exceptional circumstances in which an increase in the duration of a certificate would be appropriate".

7.35 ENABLE and PAMIS suggested that the certificate should only be extended if the adult has a welfare guardian. PAMIS felt that "the screening of applications to become a welfare guardian" as well as the "opportunities for appeal, complaint and investigation into any decisions made by a welfare guardian, which are causing concern," would act as sufficient safeguard.

Indefinite with conditions

7.36 Three respondents suggested that it would be acceptable to have an indefinite certificate with certain conditions. Two GPs suggested that this would be reasonable with yearly review. Argyll and Bute AWI Act Implementation Group said that it should be "emphasised that a certificate becomes invalid if capacity is regained during its currency".

Does not deal with the issue

7.37 Dundee LHCC was of the view that longer term certificates will not be suitable for "patients whose capacity varies from one day or one week to the next". As such, the lengthening of the period of the certificate would not solve the problem of increasing doctors' workload.

Additional suggestions made by responDENTS about the duration of Section 47 Certificates

7.38 Nearly all of the suggestions provided by respondents have already been highlighted in early sections. This section will only look at those suggestions that have not already been mentioned.

7.39 One comment was that it should be remembered that "the duration over which a certificate can apply is less important than incorporating appropriate procedures to review and cancel the certificates" (psychiatrist).

7.40 The NHS Grampian Area Dental Committee and General Dental Practitioners Sub Committee suggested:

"Where a patient's condition is stable and unlikely to improve the information obtained from previous assessments should be an acceptable basis for the completion of a new 'Certificate of Incapacity'. This is especially the case where such information has been recently obtained."

7.41 NHS Grampian GP Sub Committee suggested that certificates "could be copied to the Office of Public Guardian as a scrutineer".

Conclusion

7.42 The general consensus across interest groups was that the maximum duration of certificates of incapacity could be extended to 3 years, with, however, a number of respondents expressing certain reservations which would have to be addressed if this were to be introduced.

7.43 The arguments against extending the maximum duration of the certificate of incapacity beyond one year can be summarised as follows:

• It is good healthcare practice to carry out patient reviews at least at annual intervals, and renewal of certificates of incapacity could form a routine component of any review
• Vulnerable adults in particular require regular review on at least an annual basis
• Patients whose capacity fluctuates or is regained might become capable of making their own decisions while a certificate of incapacity remains in effect and unrevoked, inappropriately for a considerable period of time

7.44 The arguments for lengthening the maximum period of the certificate were:

• Reduction of doctors' workload
• Repeated assessments for the purpose of certification can cause distress to certain adults

7.45 The question to be addressed is the respective weights to be placed on bureaucratic efficiency and increased risks to patients if certificates of lengthy duration became the norm. Any case to extend the maximum duration would require to be based on careful articulation of the circumstances and conditions in which it would apply. In particular, an extended period might be felt to be inappropriate in cases where there is a realistic likelihood that the adult with incapacity might regain capacity or had or might develop fluctuating capacity.

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