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Section 12. Appendix 2 - Significantly
impaired decision-making ability
Introduction
Significantly impaired decision-making ability (
SIDMA) is not the same as 'incapacity'
under the Adults with Incapacity (Scotland) Act 2000.
SIDMA occurs when a mental disorder
affects the person's ability to believe, understand and
retain information, and to make and communicate decisions.
It is consequently a manifestation of a disorder of
mind.
SIDMA arises out of mental disorder
alone; 'incapacity' can also arise from disease of the
brain or impaired cognition, and can include physical
disability.
SIDMA is not the same as limited or poor
communication, or disagreements with professional
opinion.
The vast majority of people with mental illnesses retain
their ability to make decisions throughout the course of
their illness. All adults are assumed to have a
decision-making ability or capacity as a starting
point.
The 'Bournewood Gap'
This relates to an important case in English law in
which a House of Lords decision to overrule a judgement
that all patients incapable of offering consent had to be
detained was itself overturned by the European Court of
Human Rights. The ramifications of this reversal are still
to reveal themselves, but the 2003 Act provides for
application to the Tribunal in relation to unlawful
detention of an informal patient.
Issues arising
The Millan Committee clearly stated that: 'It should not
be the function of mental health law to impose treatment on
those who are clearly able to make decisions for
themselves.' Further information on the Millan Committee is
available at
www.scotland.gov.uk/Topics/Health/care/15216/1444.
The new law in Scotland recognises that patients with
mental disorder may have impaired capacity which, while
damaging their ability to make decisions, does not render
them entirely incapable. For example, a mentally ill person
may have significantly impaired decision-making ability
with regard to his or her treatment plan, but might well be
able to continue to manage his or her financial affairs
competently.
English case law has been influential in this regard,
particularly the case of Re C (1994). This determined that
capacity could fluctuate, and that the essential components
of capacity were an ability to:
- Believe the information presented
- Arrive at a choice based on the above, whilst
understanding the implications of not agreeing to a
particular suggested treatment.
That is the ability to reason and weigh evidence before
arriving at a decision, and the ability to communicate a
decision by talk, sign, or other means is also
important.
It is well known that non-consensual emergency treatment
can be administered under common law. In Scotland, however,
this is under-developed and generally a defence of
'necessity' - in other words, that it was necessary to act
in an emergency situation in the patient's best interests -
is invoked.
It is worth noting that significant impairment in
decision-making ability is required only to be 'likely' for
emergency and short-term detention orders. This means that
the medical practitioner or
AMP need only be satisfied that this
criterion is met on the balance of probabilities (51% or
more). The sophistication of the assessment of
decision-making ability is, of course, dependent on the
circumstances of assessment.
With a
CTO, the Tribunal is required to be
'satisfied' that the individual in question has
significantly impaired decision-making ability.
It is also worth noting that there is no precise
threshold for significantly impaired decision-making
ability. It is understood, however, to be more than just a
deficiency in communication, or a disagreement with the
treating professionals. As noted above, it is separate from
incapacity, but is based on similar factors: an ability to
believe, understand and retain information pertaining to
treatment.
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