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 10 Other comments made by respondents

Introduction

10. 1 This chapter summarises a number of miscellaneous responses, including those made under points 4 and 8, respectively about whether Part 5 could be streamlined in any way, and more general comments. In practice respondents treated the 2 points interchangeably, and they have been analysed together.

10.2 This chapter contains the "other suggestions" made by respondents.

Comments about the consultation process

10.3 A number of comments related to the consultation process itself. These comments can be broken down into 2 groups, respondents who felt that the consultation was premature and respondents who believed that the points contained in the consultation document had not taken into account the views of all those with an interest in Part 5 of the Act.

Consultation premature

10.4 Several comments were received, particularly from voluntary organisations, that the "consultation was premature". The Scottish Council on Human Bioethics commented that "not all healthcare professionals are, as yet, accustomed to all the intricacies (and some of the possible simplifications) of the provisions". This meant that it was difficult to respond to some of the points raised in the consultation document on how the Act was operating in practice and in which areas change might be beneficial. It was felt that "streamlining" was "not appropriate at this early stage in the legislation's lifetime" (Capability Scotland). These respondents felt that it was important to wait until research had been carried out on the operation of the Act before altering it.

Consultation ignores other interests

10.5 Several voluntary organisations felt that the consultation document had ignored their views. They pointed out the proposals had all been put forward by the BMA and the SGPC, and that comments made by groups such as SAMH, Alzheimer Scotland-Action on Dementia and ENABLE in a letter to the Minister, Malcolm Chisholm, on 30th October 2003 [sic] had been ignored.

10.6 One respondent felt that the consultation document seemed to be more concerned with "the convenience of the health care providers" than with the rights of adults with incapacity, which was the main focus of the Act (individual within Highland Primary Care Trust).

Training

10.7 The issue of training on Part 5 of the Act was a recurrent issue in the responses. Respondents highlighted both the need for further training and in some cases the perceived inadequacy of the training provided so far. For example, one GP noted:

"I have attended one training session on the Act, but the speaker ended up beleaguered in the middle of an increasingly incredulous group of doctors where he finally announced that he was giving up and it wasn't his fault anyway because he hadn't written it."

10.8 Several respondents, especially those from the voluntary sector, felt that improving training would solve a number of the issues raised in the consultation document, including concerns surrounding doctors' workload.

10.9 A number of suggestions were received as to how training on the Act could be improved, including offers to help design training programmes from groups such as NHS Education for Scotland and Capability Scotland. Comments were also received suggesting that training on Part 5 of the Act should be included in healthcare professionals' undergraduate and postgraduate curricula (Royal College of Psychiatrists Scottish Division). One respondent noted that it could be useful to have "a reliable source of advice on points of interpretation, which may well be arising simultaneously in different parts of the country" (psychiatrist).

Make the Code of Practice clearer

10.10 A related point was that it should be possible to make the Code of Practice clearer for both clinical staff and to aid the "understanding of users and carers". This could be done by using "practical illustrations and checklists" and by making "language…as simple and 'non-jargonised' as possible" (Nursing and Allied Health Professionals Renfrewshire and Inverclyde Primary Care NHS Trust).

Treatment plans

10.11 A theme that appeared throughout responses to the various points in the consultation document was that many of the concerns expressed about the Act and the Code of Practice could best be dealt with through increased use of treatment plans. This theme continued under points 4 and 8, with respondents commenting that use of treatment plans needs to "be promoted" (NHS Trust). A partial explanation for under-utilisation of treatment plans may be that the procedure for completing them is unclear. The Royal College of Psychiatrists Scottish Division asked for "further guidance on the completion of Treatment Plans" specifically on how broad the categories of interventions in treatment plans should be.

10.12 Two respondents suggested possible improvements to the design of treatment plans. One NHS Trust suggested that treatment plans could be updated by adding "a column for date and a column for assessor". The Royal College of Physicians and Surgeons of Glasgow suggested that the process might be simplified if treatment plans were on "the same form instead of a separate form from a certificate".

10.13 The Richmond Fellowship Scotland suggested that treatment plans should be made available to "the principal carer and/or support provider" as this would be useful in "crisis and emergency situations".

Information management issues

10.14 The problem of keeping track of and managing certificates emerged as a key concern for a number of respondents. Several commented that at present there is no way to keep track of certificates. This means "forms are often signed, placed in case notes and rapidly forgotten" (Tayside Old Age Psychiatrists) and that certificates are not always "accompanying patients on admission to care homes or hospitals" (Alzheimer Scotland-Action on Dementia). This leads to a number of problems including the "duplication of work for doctors and potentially putting the patient through further unnecessary assessment" (Alzheimer Scotland-Action on Dementia). It also causes difficulties for "staff in these homes [who] are very uncertain about their authority to administer treatment" (Tayside Old Age Psychiatrists).

10.15 Other problems identified were that doctors did not always know "where to find certificates" or understand "the difference between them" and that there was a "lack of management and overview of the system in health centres and GPs surgeries" (Alzheimer Scotland-Action on Dementia). There is also "no system to flag up when the certificates need to be renewed" (Tayside Old Age Psychiatrists). An individual psychiatrist commented that it is not clear what should happen to the certificate if a patient should recover capacity before the period covered by the certificate expires. This psychiatrist commented that "if it [the certificate] is to remain in the medical notes it implies that any treatment undertaken while it did apply may have been illegal". The Scottish Partnership for Palliative Care was concerned certificates are presently of "dubious legal value" as there is no way to tell if they were completed at the same time as the treatment decisions. They suggested that sequentially numbering certificates and providing "either a counterfoil or a carbonless duplicate" could rectify this.

10.16 It was felt that these concerns could start to be addressed if there were a better system for storing and managing paperwork, which would allow for the issuing of reminders and co-ordination so that certificates would follow patients as they move from one setting to another. Different suggestions were made as to where this infrastructure should be based. Alzheimer Scotland-Action on Dementia felt that it should be with Health Boards. Other respondents felt that they should be "lodged with a central organisation" such as "the office of the Public Guardian or the Mental Welfare Commission" (psychiatrist). The Chartered Society of Physiotherapists suggested that a "single shared assessment document" should be "electronic".

10.17 Lomond and Argyll Dental Department suggested that the Act could be streamlined if certificates were available to other health professionals. By this they meant that other health professionals would be permitted to copy existing certificates, for a limited list of procedures, having obtained the consent of the medical practitioner for the procedure to go ahead.

10.18 Concerns were expressed about fees being charged for the completion of certificates, and that this may be leading to treatment being delayed (Social Care Association of Scotland). In light of this Alzheimer Scotland-Action on Dementia felt that it was important to make it "clear that doctors cannot charge for certificates".

10.19 The Medical and Dental Defence Union of Scotland asked for clarification of what would happen if a certificate had not been completed but the patient had been properly cared for.

Redefine emergency

10.20 There was a view that the definition of emergency within the Act should be broadened so as "to include conditions such as pain, which may be distressing but not immediately dangerous" (Forth Valley Primary Care Trust, Community Dental Service). This was a common view among dentists, who were distressed at not being able to treat patients in dental pain. They felt that it would be particularly important to redefine emergency if dentists were not allowed to sign certificates of incapacity (Area Dental Committee Tayside NHS Board).

10.21 Other comments received suggested that the definition of emergency should be clearer, with "more guidance" on what constituted an emergency that allowed doctors to treat patients without a certificate of incapacity (psychiatrist).

10.22 Another psychiatrist suggested that in light of the fact that it may not be possible to carry out a proper consultation at certain times, such as night time, it should be possible to treat patients under common law until the patient can be properly assessed for a certificate of incapacity. This psychiatrist suggested that a "time limit could be set" on the length of time before a certificate would have to be issued.

Doctors' workload

10.23 A near universal theme among GPs who responded was that the Act had created a "considerable workload resulting from the assessment/certification process" (Temphill Surgery). GPs at the Castlemilk Health Centre stated that preparing certificates for solicitors took "far longer than the suggested 30 minutes…nearer an hour and possibly longer if the patient is housebound". GPs were concerned that the increased workload would harm their ability to care for patients.

10.24 The Medical and Dental Defence Union of Scotland agreed that at present "the additional work necessary to comply with the Code of Practice is unachievable". They also felt that the additional legislation in Scotland meant, "doctors tend to be exposed to greater risk…than those doctors working in other countries".

Suggestions on how to reduce doctors' workload

10.25 Doctors made a number of suggestions for how best to reduce their workload. The most popular solution for a number of GPs would be for other personnel to be appointed to assess capacity and issue certificates of incapacity. They suggested that this might be done by clinical psychologists and/or appropriately trained psychiatric nurses.

10.26 Other comments were received to the effect that more resources would be needed to implement the Act, for example, "funded training for GPs with, of course, funding for locum cover whilst we were absent from our surgeries learning how to administer the Act" (The Viaduct Medical Practice Denburn Health Centre).

10.27 One comment from an individual suggested that the requirement in the last sentence of paragraph 2.28 in the Code of Practice, stating that doctors consult with clergy and solicitors, should be removed.

Doctor non-compliance

10.28 A common theme in the responses was that a number of doctors were failing to comply with the provisions contained in Part 5 and the Code of Practice. These responses can be divided into 2 groups, the first being GPs who stated that they were not going to comply with the provisions. The second group consisted of other healthcare practitioners and groups with an interest in the Act who faced the problem of what to do when doctors refused to comply with the provisions.

10.29 A related point was that the Act appeared to be designed to "monitor doctors" yet it "places the power to make decision regarding 'capacity'" in doctors' hands (GP).

10.30 Dentists said that they had faced difficulties treating patients because doctors had not completed certificates of incapacity. In one case this had meant that they were "unable to legally treat" patients (individual dentist). In other cases it meant that patients had been treated without a certificate of incapacity, or that certificates had been signed by anaesthetists who, though legally allowed to do so, had little knowledge of the patient and where the "time and facilities for an assessment of capacity are restricted" (Scottish Community Dental Service Senior Clinicians Group).

10.31 Dentists were not the only healthcare professionals placed in a difficult position by doctors' non-compliance with the provisions of Part 5 and the Code of Practice. Tayside Old Age Psychiatrists warned that GPs are placing community psychiatric nurses in a difficult position, as they may be breaking the law if they treat patients who do not have a certificate of incapacity. Highland Council Social Work made similar comments about staff working in the care home sector. They called for greater clarity as to the procedures that care home staff should follow if they were not able to obtain a Section 47 Certificate for an adult with incapacity.

Suggestions of how to deal with non-compliance by doctors

10.32 Suggestions for dealing with doctors' non-compliance as described tended to have 2 main themes. Firstly, that there was a need for greater resources, such as "a system of financial incentives for training and assessment on the provisions of the Act in general" (PAMIS). Secondly that there was a need for "sanctions" to be introduced for doctors who refuse to comply with the Act (Alzheimer Scotland-Action on Dementia). These arguments were largely put forward by voluntary organisations.

Disputes between proxies and dentists

10.33 It has already been noted in chapter 8 that dentists were concerned with the procedure presently in place to settle disputes between dentists and proxies. At the moment, in the case of a dispute, a "medical practitioner" would be nominated by the Mental Welfare Commission to provide a second opinion (Area Dental Committee Tayside NHS Board). The only dental practitioners qualified to be a "nominated medical practitioner" are doubly qualified practitioners, normally specialists in Oral and Maxillofacial Surgery. It was not considered appropriate to consult these practitioners about "a disputed treatment plan involving large amounts of restorative dental care" as they have no special expertise in treating adults with incapacity (NHS Grampian Area Dental Committee).

10.34 Dentists pointed out that "the Code of Practice (Para 2.13) is clear that a medical practitioner cannot be expected to 'authorise' a course of dental treatment". They therefore question why a medical practitioner should be allowed to review this treatment in the case of a dispute. (Area Dental Committee Tayside NHS Board). In light of this, dentists called for the Act to:

"be amended to allow the 'nominated practitioner' in a disputed case to be a member of the profession/discipline most appropriate to the disputed treatment. For dental matters this should be a dentist experienced in the provision of care to this group of patients" (NHS Grampian Area Dental Committee and General Dental Practitioners' Sub Committee).

10.35 The Scottish Community Dental Service Senior Clinicians Group offered to assist the Mental Welfare Commission draw up a list of dentists to act as nominated practitioners.

Covert administration of medication

10.36 Alzheimer Scotland-Action on Dementia mentioned in its response that the Act makes no mention of the use of the covert administration of medication "for the purpose of restraint". They point to "strong evidence that tranquillisers are being used inappropriately to control challenging behaviour in people with dementia and learning difficulties." In light of this they proposed "the inclusion of a paragraph on this issue" in the Code. They "would also support regulations for the prescribing of neuroleptic drugs and to control the covert administration of medication".

10.37 Two social work departments commented on the points raised by Alzheimer Scotland-Action on Dementia. One said that they agreed with their point about the covert administration of medication, the other felt that "in some cases this may be appropriate e.g. rather than the use of force, however specific guidance would be helpful".

10.38 One comment concerned the conditions under which it might be acceptable to administer drugs covertly. The suggestion was that before drugs can be administered covertly there should have "been a recorded consultation with someone with welfare powers" or with a close friend or relative, and an agreement should have "been obtained from a second opinion doctor selected from a pool approved by the Mental Welfare Commission" (individual).

Comments about acute and intensive care

10.39 A number of comments related specifically to acute and intensive care. Among the respondents making such comments there was a commonly held view that the Act was not being implemented properly. This was felt to be due to the "increasing pressure from emergency admissions" which encouraged fast discharge. The need to comply with the Act often delayed discharge, leading to unwillingness to implement it (The Scottish Branch of the British Geriatric Society).

10.40 Several respondents suggested having a period when patients were first admitted into acute care when treatment could take place without a certificate of incapacity. This would mean that time would not have to be spent filling in certificates for patients who have only temporarily lost capacity due to a short term illness (Primary Care Trust) or due to panic on first being admitted to hospital. This is the case with some elderly people who show signs of dementia on first being admitted to hospital, which later disappears (Alzheimer Scotland-Action on Dementia). Time frames suggested for the period varied from 7 days (Primary Care Trust) to 72 hours (Department of Medicine for the Elderly Woodend Hospital). Another respondent suggested that it should be "at least 24 hours" (Primary Care Trust).

10.41 The Scottish Intensive Care Society raised 2 points about intensive care. Firstly, they wished to clarify "the amount of detail that is required on the certificate for the proposed treatment". At present most medical practitioners working in acute and intensive care would insert a

"short statement encompassing the entire package of care, treatment and support which might reasonably be expected for the specified condition and common complications of such illness, for example 'general intensive care support for acute pancreatis including CT scanning and laparotomy'".

10.42 They also questioned the need for treatment plans, as "hospital case notes are a comprehensive and current record of planned and administered care, treatment and support."

10.43 ENABLE Scotland made a separate point warning that they had dealt with cases in which the treatment of adults with learning disabilities had been "compromised in acute hospitals by the assumption that their 'quality of life' did not merit intensive care methods". In light of this they called for all acute hospitals to be "reminded of the responsibilities under the Act and indeed under the Disability Discrimination Act and the Human Rights legislation".

Relationship with the Mental Health Act

10.44 Comments were made about the relationship between the Act and the Mental Health (Scotland) Act 1984. SAMH felt that "the guidance" as to when the Adults with Incapacity (Scotland) Act 2000 should be used and when the Mental Health (Scotland) Act 1984 should be used "is vague and may be interpreted differently in different parts of the country, leading to inconsistencies in practice". They believe this issue will be even more marked when the Mental Health (Care and Treatment) (Scotland) Act 2003 comes into force. They wanted reassurances that

"one Act is not being used in preference to another simply because it is procedurally easier for the professionals involved at the expense of the safeguards available for patients".

10.45 Other respondents asked for more explicit guidance as to whether an "adult can be placed in hospital against his/her will for treatment of a physical disorder under the 2000 Act". What to do if a patient resisted treatment was of particular concern to the Royal College of Psychiatrists Scottish Division "where a person's condition may cause a risk to others" for example if they have TB [tuberculosis] or HIV [human immuno-deficiency virus] and "resist procedures to screen for or treat these conditions".

10.46 A couple of comments were made on the relationship between the two Acts with regard to specific treatments. The Royal College of Physicians suggested that treatment with ECT should "only be authorised under the Mental Health Act for patients who are incapable". A psychiatrist asked "whether antibiotics should be regarded as treatment for delirium in terms of either or both of these Acts".

End of life decisions and advance directives

10.47 Two groups of comments focused on end of life decisions and advance directives. A number of religious groups such as the Bishops Conference of Scotland and Christian Action Research and Education wanted it to be made clear in the Code of Practice that "advance directives are not legally binding under the terms of the Act".

10.48 The other group of comments came from healthcare professionals, who stated that advance directives and end of life decisions did take place in clinical practice and, because of this, the Code of Practice should address these issues (Primary Care Trust). A psychiatrist commented that it was wrong that the current Code of Practice gives the example of "refusing fundamental health care procedures as an example of the proxy decision maker acting unreasonably" as they may have "valid views on this or information based on the adult's previously expressed wishes".

Screening

10.49 Several respondents questioned whether the Act includes provision for screening. The Royal College of Psychiatrists Scottish Division raised the issue of breast cancer screening for "women of a certain age" and screening for hypothyroidism for people with Down's Syndrome. The issue of "mentally ill patients who have been continuously in residence in hospitals for decades" and whether these patients would be excluded from screening as they were not registered with a general practitioner, was also raised, and whether the Act could be expanded to "cover their needs for screening" (individual).

Need for more effective communication

10.50 Two comments were made to the effect that, as put by the Chartered Society of Physiotherapists, better "communication and procedures…in both acute and primary care settings" might streamline the Act.

Research

10.51 Although there was no specific question in the consultation paper on research in relation to Part 5, a number of comments were received about the research provisions in Part 5 of the Act. These comments included responses from all 5 of the academics who replied to the consultation paper. These responses were mainly concerned with the provisions to allow adults with incapacity to take part in research. Respondents felt that at present it was impossible for many adults with incapacity to meet the requirement that, before they can take part in research, a guardian, welfare attorney or the adult's nearest relative must have given their consent. This is because few adults with incapacity have a guardian or welfare attorney, and many of those with learning disabilities or with an acquired brain injury do not have a nearest relative, or not one with whom they are in contact. This means that it is impossible for these adults to take part in research and

"prevents all research into gaining a better understanding of social networks of adults with learning disabilities and how these might inter-relate with mental health needs" (academic)

10.52 In the light of these problems, respondents suggested that the adult's "main support worker" be permitted to consent to research on their behalf. Alternatively the Royal College of Psychiatrists Scottish Division suggested "an independent advocate could give consent to research".

10.53 Comments were also received about the provisions concerning ethics committees. The Tayside Committee on Medical Research Ethics questioned the fact that "Local Research Ethics Committees (LRECs) were denied the authority to consider research involving Adults with Incapacity". They also suggested that the dropping of "the safeguard whereby LRECs review MREC-approved research in respect of locality issues" be re-considered, particularly considering that this is an "especially vulnerable group".

10.54 At present, paragraph 4.5 of the Code of Practice states "the Act provides exceptionally for the possibility that research may be carried out even where it is not likely to produce real and direct benefit to the adult". One individual suggested that the word 'exceptionally' be removed from this wording, explaining that this caused problems for ethics committees as the Act "contained no such restrictive flavour".

Other comments

10.55 The following section contains one-off comments and suggestions received.

10.56 The Royal College of Speech and Language Therapists were concerned that "no funding has come to health services" to implement the Act. They also wished to express "concerns regarding the legal costs of becoming a welfare attorney or guardian".

10.57 The Royal College of Physicians felt that there was a need for greater clarity on who is the "medical practitioner primarily responsible". Patient may have little contact with their GP but be seeing a psychiatrist regularly, but it was felt that the psychiatrist "clearly cannot sign a Certificate which covers treatment that s/he is only recommending to the GP".

10.58 The Scottish Partnership for Palliative Care commented that discussing the Act with families who are facing the "imminent death of a loved one" might be "inappropriate".

10.59 The Royal College of Physicians and Surgeons of Glasgow suggested that it might be possible to have a "roll out of the Act" "starting with those patients who are currently in institutional care".

10.60 The Independent Federation of Nursing in Scotland commented on the need for greater clarity on whether certificates are needed in acute psychiatric care as at present "forms 9 and 10 are considered as sufficient, but incapacity is valid at that current point also".

10.61 A few comments were received to the effect that the Act is unnecessary, as qualified health professionals would always act in the interest of their patients. The Dundee LHCC, Elderly, and Rehabilitation Directorate for instance said they "have always taken into account the person's wishes as well as those of family and representatives". They were also of the view that

"if someone is admitted to a nursing home they require the care provided by that nursing home and thereby consent is given by them or those that have admitted the patient there for basic fundamental procedures such as nutrition and personal care".

Conclusion

10.62 While some of the comments made under point 4 and point 8 were made by a number of different respondents, others were individual comments, or raised only by certain interest groups. Due to their miscellaneous nature these comments cannot be consolidated as a statistical summary, but the main themes to emerge were as follows:

• The consultation exercise was premature
• The issues addressed by the consultation paper addressed concerns of doctors and ignored other interests
• More and better training on Part 5 of the Act and the Code of Practice is needed
• The Code of Practice should be made clearer
• There is scope for increased use of treatment plans
• A system for storing and managing Section 47 Certificates is needed
• The definition of an "emergency" should be made clear and could be broadened
• The problem of doctors' non-compliance with the provisions of Part 5 of the Act and the Code of Practice should be addressed
• The Code of Practice should include reference to covert administration of medication
• Particular issues in relation to acute and intensive care
• The relationship of the Act with the Mental Health Act 1984 should be clarified
• The issue of end of life decisions and advance directives should be covered in the Act and the Code of Practice
• There is a need for clarification as to whether screening of adults with incapacity for certain conditions can be carried out
• Part 5 of the Act may have the result of preventing some research concerning adults with incapacity

« Previous | Contents | Next »