Dr Keith Bowden NHS Forth Valley

1. Treatment in the absence of consent - the interface between the Mental Health Care & Treatment (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000 Dr Keith Bowden NHS Forth Valley

2. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Plan • Areas of interface/potential confusion • The definition & assessment of ‘capacity’ • Contributors to decision-making • Complicating factors • A tentative algorithm for decision making

3. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Usage of the Acts • 30,000 powers of attorney registered (Public Guardian) • MWC Annual Report 2003-2004 • Detentions under Mental Health (Scotland) Act 1984 • Emergency Detentions 4682 • Short-Term Detentions 2763 • Long-Term Detentions 1192 • Adults with Incapacity (Scotland) Act 2000 • Guardianship applications 398 (53% dementia, 25% learning disability) • Second opinion requests s.48 (Medication - 17 E.C.T. - 26) • Second opinion requests under s.50 0 Ever!

4. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Necessary conditions for making decisions under AWISA For the purposes of the Act, incapacity means incapable of: • acting; or • making decisions; or • communicating decisions; or • understanding decisions;or • retaining the memory of decisions in relation to any particular matter by reason of mental disorder or of inability to communicate because of physical disability.

5. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Assessment of capacity for AWISA AIDE MEMOIRE - HOW IS CAPACITY ASSESSED? (1) “Most consultants and GPs already intuitively assess people’s capacity to reach decisions about their medical care. The Act requires you now to bring this forward into explicit practice. There is as yet no template or algorithm for the assessment of capacity across all situations in which the need to do so may arise.”

6. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Assessment of capacity for AWISA AIDE MEMOIRE - HOW IS CAPACITY ASSESSED? (3) “You should keep a contemporaneous record of how you assessed the adult’s capacity and the decision you reached. Any decisions taken by doctors under this Act could be challenged in Court and it is always helpful to have a reminder of why you reached a particular decision.” … “Although the final decision is yours, you should take a multi-disciplinary approach to reaching that decision.”

7. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Assessment of capacity for AWISA FROM CODE OF PRACTICE It is a statutory requirement to take account of the present and past wishes and feelings of the adult, so far as they can be ascertained by any means of communication appropriate to the adult. Such communication includes human communication or communication by mechanical aid. It will be reasonable to use the help of the adult’s relatives, friends, social worker, clergy, or others who may be available and in a position to assist. A multidisciplinary approach is commended, using particularly the services of clinical psychologists, neurologists, speech and language therapists and of qualified and experienced interpreters, where it is reasonable and practicable to do so.

8. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Comment on Assessment of Capacity in MWC Annual Report • “The Code of Practice should recognise that the thoroughness of the doctor’s assessment of capacity needs to be proportional to the seriousness of the proposed treatment; for example, the adult’s capacity to understand and consent to complex treatment for cancer may need much more thorough assessment than it would for more straightforward matters”

9. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Assessment of capacity for MHCTSA Draft Code of Practice • “…significantly impaired decision-making ability. This concept is separate to that of “incapacity” as defined under AWISA. However, when assessing a person’s decision-making ability, it is likely that similar factors will be considered to those taken into account when assessing incapacity…”

10. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Assessment of capacity for MHCTSA Code of Practice • “One difference between incapacity and significantly impaired decision making ability arguably is that the latter is primarily a disorder of the mind in which a decision is made, resulting in the decision being made on the basis of reasoning coloured by a mental disorder. Incapacity, by contrast, broadly involves a disorder of brain and cognition which implies actual impairments or deficits which prevent or disrupt the decision-making process.”

11. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Necessary conditions for compulsory treatment under MHCTSA e.g. Short-term detention • that the patient has a mental disorder, and • the patient’s ability to make decisions about the provision of medical treatment is significantly impaired as a result of that mental disorder; • it is necessary to detain the patient in hospital for the purpose of determining what medical treatment should be given to the patient or of giving them medical treatment; • there would be a significant risk to the health, safety or welfare of the patient or to the safety of any other person if the patient were not detained in hospital; • the granting of a short-term detention certificate is necessary

12. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Necessary conditions for compulsory treatment under MHCTSA • For Emergency and Short-Term Detention the practitioners involved must consider it likely that the necessary conditions apply • For Compulsory Treatment Orders the practitioners involved must be satisfied that the conditions apply

13. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Contributors to decision making under MHCTSA • The patient • The patient’s named person • nominated by patient (who must understand the effect that the nomination will have) • witnessed by person of prescribed class • acts independently of the patient • has specific rights under the Act • in absence of nomination main carer will automatically be named person (then nearest relative) or Tribunal appointed • Independent Advocate • cannot act independently of patient

14. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Contributors to decision making under MHCTSA continued • Welfare Attorney or Guardian • limited profile within MHCTSA but can contribute to decision making and require to be consulted for treatments under AWISI • ?may be difference in nature of involvement depending on whether a relative etc. or a local authority representative • Carers • Advance statements • duty to have regard to advance statement • ?potential also for use in AWISA

15. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Complicating Factors • Potential for conflict between contributors to decision making • different views • conflicting roles • differing standards to be appointed • Continuing application of powers under AWISA when patient under MHCTSA • Deciding between restrictions managed by AWISA or MHCTSA when ensuring community treatment arrangements • Comparative accessibility of Mental Health Tribunal & Sheriff Court

16. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Complicating Factors • Risk of increasing requirement for formal detention of people who are unable to consent to hospital admission? • the Bournewood case - ECHR judgement in case of H.L. v. the United Kingdom • Which Act has the higher standard to be applied in practice? • What is least restrictive option between Acts • Increasing proliferation of non-hospital residential specialist facilities - use of AWISA guardians to require people to move • The City of Edinburgh against Z - Prader-Willi Syndrome case example • Appropriateness of guardianship as a criminal disposal

17. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA A tentative algorithm for decision-making on which Act to use (1) Do they currently require assessment/ treatment for this mental disorder? Do they present a significant risk to themselves or others? Does the person have a mental disorder? Go to next slide Yes Yes Yes Review need for powers if level of risk increases Enter disputes procedure as per Section 50 of AWISA No No No Neither Act applicable (unless physically unable to communicate when AWISA may apply) MHCTSA does not apply. AWISA may be applicable for other decisions Do they have the capacity to consent to treatment? No ‘Treatment proposer’ accepts Treatment not provided Yes Yes Do they agree with proposed treatment Provide treatment Yes No No Have they a welfare attorney or guardian with powers relating to medical treatment decisions? Consult if reasonable & practicable Do they agree with proposed treatment No Yes Treatment can not be provided Not Possible Yes No Provide treatment Review need for powers if level of risk increases ? Provide treatment under certificate of incapacity (Section 47) in accordance with principles of AWISI

18. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA A tentative algorithm for decision-making on which Act to use (2) Do they have ‘significant impairment’ of decision making in relation to medical treatment for mental disorder? This person is a significant risk to themselves or others Review need for powers if consent withdrawn Can not be detained Emergency Detention No Admit and treat with consent Yes No Neither Act applicable Yes Criteria for Emergency Detention met? Can assessment/ treatment be provided safely in a community setting Yes Will the person co-operate fully with this Yes Yes Is the person willing to be admitted to hospital on a voluntary basis No Would making arrangements for short term detention involve ‘undesirable delay’ No No Do they lack capacity such that AWISA can be used? Yes No Do they have the capacity to consent to treatment? Compulsory Treatment Order - Community Yes No No No Will they co-operate with treatment if required by Guardian or Intervention Order? Criteria for Short Term Detention met? Compulsory Treatment Order - Hospital Yes Follow procedures as described in previous slide Short Term Detention Yes No 3. Provide community based treatment supported by AWISA powers Yes 2. Can treatment be provided safely in the community? Least restrictive community treatment option Yes No Treatment Complete? 1.

19. Treatment in the absence of consent - The interface between the MHCTSA & the AWISA Issues • What is the least restrictive option between AWISA and MHCTSA in individual cases? • Where will the Adult Support and Protection Act fit with all this? • Are we making the most appropriate use of the legislation? • How consistent is interpretation of the legislation?