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Main Findings

• More than half of the respondents supported the suggestion that it would be possible to have a variable assessment procedure. However, there was a sizeable opposition to the suggestion. The debate about variable assessment highlighted the need to minimise risks to adults with incapacity and healthcare practitioners, balanced against the benefits (principally efficiency savings for General Practitioners).
• The majority agreed with the proposed replacement of the present wording relating to the date of examination of a patient for the Section 47 Certificate. The weight of responses was heavily in favour of changing the wording "today examined" which was felt to be unduly restrictive but the proposed replacement wording "based on my considered opinion" was considered by some respondents to be too loose.
• The weight of opinion was in favour of a certificate of incapacity being required when a proxy exists. There was, however, also a sizeable body of opinion that a certificate should not be needed when there is a proxy.
• The general consensus among respondents was that the maximum duration of certificates of incapacity could be extended, subject, however, to various qualifications. A number of respondents expressed reservations about extending the duration for vulnerable adults where capacity might fluctuate.
• The general view was that health professionals other than registered medical practitioners should be allowed to sign certificates of incapacity, subject, however, to various qualifications, including the need to ensure that health professionals are equipped with sufficient skills.
• The largest group of respondents, mainly health professionals, agreed that medical treatment could be redefined to exclude certain forms of treatment. However, there were oppositions to this view. There were differing interpretations of what might constitute routine treatment.

Background

Part 5 of the Adults with Incapacity (Scotland) 2000 Act is concerned with provisions to safeguard the interests of adults with incapacity in relation to medical treatment and research and came into effect on 1 July 2002. A Code of Practice, giving guidance on the operation of the Part 5, came into effect in conjunction with Part 5, following wide consultation by the Scottish Executive. The Code was due for revision in July 2003 but, due to concerns expressed about the operation of Part 5, the Scottish Executive advanced the review, launched on 31st March 2003. This review sought the views of a wide range of stakeholders on changes or improvements that might be made to the Code of Practice and whether consideration ought to be given to amending the terms of Part 5 to assist its effective operation. The consultation sought responses to the following 8 points:

Point 1: Would it be possible to have a variable assessment procedure reflecting the scope and degree of the intervention or treatment proposed. How might the Code be amended to accommodate this?

Point 2: Should the wording "today examined" be removed from the Section 47 Certificate and replaced with the phrase, "based on my considered opinion"?

Point 3: Do you believe that the requirement to have a certificate of incapacity even where a proxy exists, as stated in the Code of Practice, has had any adverse impact on services to patients?

Point 4: Do you have any other suggestions as to how the Code of Practice could be streamlined?

Point 5: Do you think that the upper limit of the duration of a certificate of incapacity should be raised from one year to 3 years?

Point 6: Should more flexibility be given in Part 5 of the Act to allow other health professionals to sign the certificate of incapacity? If so, which other health professionals should be allowed to sign?

Point 7: Should the term "medical treatment" be redefined to exclude certain forms of treatment?

Point 8: Any other points consultees might wish to make in relation to Part 5 would be welcome.

Profile of Respondents

Responses were received from 28 General Practitioners, 10 other doctors, 17 dentists, 10 Hospital Trusts, 7 nurses, 11 social work respondents, 9 voluntary sector respondents and 56 others. These others represented a diverse cross-section of organisations and individuals including health care providers, health care associations, and national representative organisations for health care providers, interest groups, academics, medical protection societies and individuals. Different points received different levels of response. Point 6 received the greatest number of comments. GPs, the largest single interest group, tended to address only points 6 and 8. Dentists were most concerned with points 6 and 7. There were a number of noticeable gaps in the responses received, namely advocacy organisations, adults with incapacity and their carers, people with acquired brain injury and the general public.

Detailed Findings

Responses to point 1 were divided by interest group. Healthcare practitioners shared the view 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 suggestion to overcome these concerns was the utilisation of treatment plans. The voluntary sector and some social workers were strongly opposed to certain treatments being excluded from the necessity for a certificate, stressing that variable assessment would expose adults with incapacity and healthcare practitioners to risk. The debate over whether or not to introduce variable assessment can be summarised as the need to consider any risk to adults with incapacity and to healthcare practitioners balanced against the benefits (principally efficiency savings for General Practitioners).

With regard to point 2, the weight of opinion was that the wording "today examined" in a certificate of incapacity should be relaxed. It was argued that this would allow for the inclusion of previous assessments, and be less time consuming. Some respondents questioned the necessity to reassess adults who were not going to regain capacity. However, others were of the view that the proposed replacement wording "Based on my considered opinion" is too loose. It was argued that such wording may allow for a certificate being issued without examination. The replacement wording was felt by some to be vague, paternalistic and may lead to treatment not in the best interests of the person. Concern was also expressed that adults who have regained capacity are at risk if assessments are not carried out on the day.

Responses to point 3 were divided. Health professionals were of the view that the need for a certificate of incapacity, even where a proxy exists, provides additional safeguards to protect adults with incapacity. However, the BMA and a number of voluntary organisations felt that there are already enough safeguards in place to protect adults with incapacity.

Responses to point 5 shared the view that the maximum duration of certificates of incapacity could be extended to 3 years, with, however, a number of respondents expressing certain reservations. Arguments against extending the duration beyond a year included the view that it is good healthcare practice to carry out patient reviews at least annually and renewal of certificates of incapacity could form a routine component of each review. The inappropriateness of extending the duration of the certificate for adults who might regain capacity, or might have fluctuating capacity, was also highlighted.

The general consensus amongst respondents to point 6 was that other healthcare professionals should be allowed to sign certificates of incapacity. Dentists were particularly concerned with this point. A smaller group of respondents opposed the proposal, arguing that only registered medical practitioners are qualified to assess capacity and that it would be too complicated and risky to allow other health professionals to sign certificates. They felt that, before other health professionals are authorised to sign certificates of incapacity, they would have to be equipped with the necessary skills to carry out assessments of capacity.

Responses to point 7 divided into 2 broad groups with little area of agreement. The larger group, which included most of the healthcare professionals, felt that the current definition of medical treatment is too broad, delays the provision of treatment and takes up doctors' time due to unnecessary certification. A second, smaller group opposed this view, arguing that redefining medical treatment exposed both patients, and the healthcare practitioners who treated them, to risks. A fundamental issue is whether it would be possible to exclude from the definition of "medical treatment" any treatment that could be described as an intervention in terms of the Act without undermining the principles underlying the Act.

General comments to points 4 and 8 were of a mixed nature. The main themes to emerge included specific issues about training on Part 5 and the Code of Practice, the need for the Code of Practice to be made clearer, General Practitioner non-compliance with the provisions of Part 5, the relationship between the Act and the Mental Health Act, issues related to acute and intensive care and issues about end-of life decisions and advance directives.

Conclusions

The findings are specific to the consultation exercise and to those who chose to respond to the consultation. There was no general consensus across the different responses to the consultation document and the consultation exercise is not the vehicle for interest groups with differing viewpoints to respond to and engage with the others' arguments. It should be noted very few responses to this consultation came from the general public and none appear to be from adults or carers with direct experience of the legislation in practice.

The merits of the different arguments to the consultation need to underpin any decisions to change the Code of Practice or the Act. Overall there is a need to balance the bureaucratic concerns and related workload issues for medical practitioners with the need to protect the rights of adults with incapacity and to the healthcare professionals.

Information about the Main Report

The main report provides further detail about the profile of the groups and individuals who responded to the consultation document. Similarities among responses are noted and the pattern of responses across interest groups is compared. It provides a statistical summary of the responses to the consultation questions. It looks at the level of agreement with each of the 8 consultation points. The range of responses to the consultation questions are described and analysed.

Methods of Analysis

A limited policy analysis was carried out to contextualise the legislation and previous consultation findings as a background for the responses received. A brief quantitative analysis using SPSS was used to provide a basic statistical description of the patterns of responses and non-responses. A more in-depth qualitative analysis was undertaken to provide a summary of key themes and a detailed interpretation of the responses.

Two levels of analysis were carried out, based on a summary of the content of each response followed by a second-level interpretation of the meaning of the content. Each response was analysed using an agreed framework developed by the research team in consultation with the research client based on:

• Coding for group profiles of who responded
• Coding the sections based on actual questions and coding of responses to sections based on themes
• Interpretation of the meaning of responses with specific reference to the profile of the respondent groups

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