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Introduction
6.1 Healthcare professionals are often unsure how to represent the interests of adults with incapacity in their treatment. There is a lack of clarity concerning the legal framework within which they can make general treatment decisions. It is in the interests of all for legislation to define this matter with greater precision. Attitudes to medical practitioners and their right to make decisions on the treatment of their patients have been changing in recent years. Patients and their relatives expect to be more involved in decision-making than once was the case and medical practitioners now expect to have their decisions questioned and reviewed more frequently.
6.2 In announcing an Adults with Incapacity (Scotland) Bill as part of the Executive's first legislative programme, the First Minister made it clear that legislation on medical aspects would only be introduced where it is necessary and desirable to clarify the law. Giving medical practitioners the authority to treat and undertake research relevant to the treatment of adult patients with incapacity represents such a reform.
Policy objectives
6.3 We propose to introduce a general authority to treat, which will allow medical practitioners and other healthcare professionals to give treatment (including diagnostic tests and procedures) and undertake research relevant to the treatment of adult patients who are incapable of making or communicating a decision on their own treatment.
6.4 Adults with incapacity cannot understand their treatment or discuss it with healthcare staff. Because of uncertainty about the legal and ethical issues involved in setting up research work, some of the treatments which could benefit people with incapacity may not be available to them, nor may they be able to benefit from the findings of research into the causes and consequences of many of the medical conditions associated with incapacity. Scots law is currently unclear as to whether a medical practitioner or any other healthcare worker may carry out any invasive procedure or drug treatment if the patient has been unable to give consent, even when such treatment is clearly for the benefit of the patient. The only secure authority for a doctor in such circumstances at present is by recourse to the courts, a process not suited for everyday use.
6.5 In England, a House of Lords decision has developed the concept of necessity that a doctor could treat a patient with incapacity where it was in the best interests of that patient to receive such treatment. That decision would not necessarily bind Scottish courts, so Scottish patients and medical practitioners remain in an uncertain position. That is why we consider it desirable to put in place authority to treat in those circumstances.
6.6 In such a delicate area of policy it is right that we should look carefully at arrangements that are needed to protect both patients and medical practitioners and we have done this. We shall define healthcare professionals as those on a recognised register and those acting under their instructions. We propose to place an obligation on healthcare professionals to consult relatives, welfare attorneys and guardians about treatment where appropriate, and this would be recorded. We propose to exclude certain forms of treatments from the general authority to treat. We shall provide mechanisms whereby treatment decisions can be challenged in the Court of Session when those close to an adult with incapacity have grounds for unease. A further important safeguard will be to ensure that assessment of capacity is the responsibility of the medical practitioner in overall charge of the patient's care.
6.7 We intend to include in the Bill powers to specify certain forms of treatment which will be excluded from the general authority to treat. Regulations will be brought forward to define treatments which cannot be given if the patient is not able to consent, treatments which will be subject to a second medical opinion, and treatments which cannot be given without the consent of the court. The treatments to be excluded will be finalised in the light of debate and of advice from the Millan Committee which is currently reviewing the Mental Health (Scotland) Act 1984. But our current intention is to exempt from the general authority to treat:
6.8 We also propose that sterilisation of an adult who is unable to give consent should be possible only with the authority of the court, unless it is being carried out for treatment of a serious physical disorder.
6.9 We propose that healthcare staff should be required to take account of the views of the patient if these can be ascertained, and those of the nearest relative, when taking decisions on the treatment of any adult with incapacity. Where a welfare attorney or guardian with relevant powers has been appointed, medical treatment and research participation should only happen with the consent of that person except where the court has ruled otherwise.
6.10 If the court has ruled on medical treatment of an adult with incapacity, doctors will have no authority to take action that conflicts with the court's decision. While the opinion of the court or of an independent consultant is being sought, we propose that healthcare professionals should have the authority to give treatment necessary to save the life of, or prevent a serious deterioration in the condition of, the patient.
6.11 Special arrangements will be needed in respect of the small number of patients who are, at the time of their treatment, detained in terms of the Mental Health (Scotland) Act. We do not intend the general authority to treat to take the place of the arrangements for authorising treatment for mental disorder laid out in the Act.
6.12 We believe that the general authority to treat should not authorise the use of force or detention of a patient with incapacity, except where urgently necessary to prevent serious harm to that patient.
6.13 We propose that the general authority for healthcare professionals to treat adult patients who are incapable of giving consent should be augmented by an authority to conduct research relevant to their treatment. This will be subject to the approval of the appropriate research ethics committee. Steps to protect the patient will include a requirement that the research must be into the causes, diagnosis, treatment or care of the patient's incapacity or associated symptoms or disease; that the research should involve minimal risk or discomfort to the patient; and that written consent should have been obtained from the patient recently but while still capable, or from their welfare attorney or guardian with relevant powers; or that consent has been given on behalf of the patient by their nearest relative.
Alternative approaches
6.14 We have examined carefully a number of other proposals made by the Scottish Law Commission, by the Alliance for the Promotion of the Incapable Adults Bill, and by others. Such proposals have included legislation to give clear legal force to Advance Statements ("Living Wills") and to provide for the withholding or withdrawal of treatment from patients who may be in a persistent vegetative state (PVS). Although such proposals have the sincere support of particular interest groups, we do not consider that they command general support. Attempts to legislate in this area will not adequately cover all situations which might arise, and could produce unintended and undesirable results in individual cases.
Consultation
6.15 Extensive consultation has taken place on these issues since the Scottish Law Commission published its Report on Incapable Adults 4 years ago. In recent months, particularly, issues relating to medical treatment of, and research on, adults with incapacity have been addressed at a seminar arranged by the Alliance for the Promotion of the Incapable Adults Bill and at a conference organised by Alzheimer Scotland Action on Dementia. The Alliance seminar brought medical and patient interests together with church and other interest groups. At both of these events a consensus emerged about the approach to be taken in the Bill, which was broadly in line with the proposals we are now making. The need to clarify the law in this area has gained widespread acceptance.
Conclusion
6.16 We believe that it is in the best interests both of patients and of medical practitioners that the law of Scotland should give specific authority for the treatment of adults with incapacity, and research relevant to that treatment, subject to the safeguards set out in this chapter. Our proposals will clarify the law, allow for the views of those who have the patients' best interests at heart to be taken into account, and will provide a mechanism for reviewing treatment decisions when these are not agreed by all. They will obviate the need for repeated and costly applications to the court, and will open the way to more confident and effective treatment for a substantially disadvantaged group of people.
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