1. Introduction
1.1 Part 5 of the Act gives a general authority to medical practitioners to treat patients who are incapable of consenting to the treatment in question.
1.2 Medical practitioners will be responsible for determining incapacity and for the issue of the medical certificate confirming incapacity.
1.3 The Medical Practitioner’s decision is always subject to a right of appeal to the Sheriff. Appeals can be instigated by the adult or anyone who can claim an interest in the adult’s welfare or medical treatment.
1.4 Common Law gives authority to give life-saving treatment to patients who cannot consent. The Act makes no change to this position.
1.5 The Act is concerned only with non-emergency treatment.
1.6 The Act also enables Medical Research to be carried out where the patient is unable to consent and provides conditions and rules, which must be followed relating to this research.
2. Who has Authority to Treat?
2.1 The medical practitioner primarily responsible for the treatment and any other person authorised by the medical practitioner has the authority to treat. This would include nurses, other doctors, physiotherapists, dentists, opticians, etc.
2.2 Before the medical practitioner’s authority to treat becomes effective he must complete a certificate to the effect that the patient is incapable of giving consent to the treatment in question.
2.3 Different treatments can be combined if a treatment plan is attached to the Certificate authorising these.
2.4 Once issued the medical certificate can be valid for up to one year. It should be noted that more than one certificate could be in place at any one time.
2.5 The medical practitioner’s general authority to treat an adult will not apply where a ‘proxy’ has been given the authority to consent to treatment on behalf of the adult. That is a welfare attorney, welfare guardian or someone acting under an intervention order which gives this authority.
2.6 Where a proxy has been appointed with authority to consent to treatment the medical practitioner is obliged to seek that person’s consent as far as is reasonable and practicable before giving the treatment.
2.7 The medical certificate issued by the medical practitioner primarily responsible or the consent of a proxy will take the place of the consent of the adult.
3. Assessing Capacity
3.1 Where hospital, care home or community staff employed by the statutory or independent sector are working with an adult who may lack capacity and who may need medical treatment, an initial assessment should be carried out to determine whether or not the adult may be capable of giving informed consent to that treatment. Note - Throughout this procedure ‘staff’ relates to the term above, unless otherwise specified
3.2 Where capacity is in question, staff should consult with the medical practitioner primarily responsible for the adult’s care ( either the G.P. or Consultant ) as to the need for a Certificate of Incapacity.
3.3 If it is known that there is a proxy who can consent, this should be recorded in the patient/client records.
3.4 Staff should check records to determine if the adult has a proxy who can consent on their behalf. If patient/client records do not contain this information, the Office of Public Guardian has registers of all Welfare Attorneys, Welfare Guardians, and people authorised under Intervention Orders. Highland Council’s Lead Officer for Adults with Incapacity also holds such information.
3.5 If there is a proxy who can consent, staff should inform the relevant medical practitioner.
3.6 Medical staff providing treatment under their general authority to treat must always take into account the general principles of the Act.
- The treatment must benefit the adult
- The treatment must be the least restrictive option consistent with the purpose of the treatment
- The past and present wishes of the adult must be taken into account as far as they can be ascertained using any means of communication. (This would include interpreters, sign language, electronic or mechanical means of communication etc.)
- The views of the adult’s relatives and carers as well as anyone else having an interest in the welfare of the adult must also be taken into account. Please Note: Advance Statements and Directives are a useful indication of an adult’s past wishes, but are not legally binding.
3.7 Relevant staff, relatives, carers, and anyone else with a legitimate interest in the adult’s welfare should therefore be consulted before a Certificate of Incapacity is completed.
4. Certificate of Incapacity
4.1 Once a decision is reached that the adult is not able to give informed consent, a Certificate of Incapacity must be completed using the prescribed form (see Appendix 1). This applies even where a proxy is able to give consent.
4.2 The Certificate contains details of the adult, nature of incapacity, proposed treatment, and its duration.
4.3 The Certificate lasts for a maximum of one year, and would have to be renewed if treatment continued.
4.4 Where more than one treatment is proposed, a treatment plan should be completed (see Appendix 2 for suggested format). The section in the Certificate relating to treatment can then be completed with a reference to the attached treatment plan.
4.5 A variety of treatments can be covered by the Treatment Plan. However any treatment which would normally require written consent e.g. a surgical operation, will need a separate Certificate.
4.6 The Certificate is lodged in the patient’s case notes.
4.7 A copy of the Certificate (including treatment plan where relevant), plus a covering letter, should be sent to any staff responsible for undertaking the treatment, including hospital doctors, nurses, PAMs, etc.
4.8 Staff should ensure that information regarding authority to treat is communicated to the staff responsible for the adult’s care if they move to another hospital or care home, or back to their own home.
5. Disputes concerning treatment decisions
5.1 The Act makes provision for the decision of medical practitioners to be challenged in respect of the treatment of adult’s with incapacity.
5.2 In many cases there will be no disagreement between the medical practitioner and the proxy regarding the treatment proposed. In these cases the treatment will normally be given as a matter of routine.
5.3 Where there is disagreement between the medical practitioner and a proxy the medical practitioner must refer the case to the Mental Welfare Commission who will nominate a medical practitioner to give an opinion concerning the treatment. This ‘Nominated Medical Practitioner’ will be independent of the medical practitioner primarily responsible for treatment.
5.4 The Mental Welfare Commission will establish a list of ‘Nominated Medical Practitioners’ specifically for this purpose.
5.5 The ‘Nominated Medical Practitioner’ will be required to examine the patient and consult with the proxy and all relevant people nominated by the proxy.
5.6 If the nominated medical practitioner agrees with the treatment proposed then it could proceed even if the proxy still disagrees. (But see 5.8 below)
5.7 If the nominated medical practitioner is not in agreement with the proposed treatment then the medical practitioner primarily responsible has a right of appeal to the Court of Session.
5.8 The same right of appeal to apply to the Court of Session is also extended to any person having an interest in the welfare of the adult.
5.9 Where an appeal is lodged with the Court of Session further treatment must not be given, except in emergencies.
5.10 Highland Council, Acute Hospital Trust, and Primary Care Trust staff may on rare occasions be involved in disagreements regarding medical treatment which cannot be resolved simply.
5.11 If any member of staff believes that an appeal may be required they will have been in close consultation with their line manager throughout the process leading up to the time when an appeal is being considered.
5.12 Decisions of this nature must involve the appropriate Service and Senior Managers and can only be taken after full and detailed consultation with the Legal Service.
5.13 If anyone claiming an interest in the welfare of an adult should approach staff for advice concerning an appeal of this type they should be referred to their own legal advisers without delay.
6. Treatment not included in the general authority to treat
6.1 A number of intrusive or irreversible treatments are specifically excluded from the medical practitioner’s general authority to treat. Generally these treatments are those specified in the Mental Health (Scotland) Act 1984.
6.2 Some treatments are regulated under Section 48 and require additional safeguards before treatment can proceed. Such treatments are specified in the Regulations which are included in a Supplement to the Code of Practice.
6.3 Relatives, carers and others concerned with the welfare of the adult should still be consulted.
7. Authority for Research
7.1 The Act sets out the circumstances and conditions that must apply when research involving adults with incapacity is to be undertaken.
7.2 Any medical practitioner or other appropriate professional who proposes to undertaken medical research of this nature must be fully aware of the conditions which apply and the protocols required for obtaining authority to carry it out, which are detailed in Section 51, and Part 4 of the Code of Practice.
7.3 The consent of the adult’s proxy or nearest relative must be obtained before the research can proceed.
8. Council Staff as Proxies
8.1 MHOs and Care Managers who act as delegated Welfare Guardians or as a person authorised under an Intervention Order with power to consent may be asked for consent either to medical treatment or to research on behalf of an adult.
8.2 The decision is a matter of professional judgement, but should not be made unless there has been consultation with relatives, carers, and staff involved in the adult’s care. Discussion with a line manager is advisable.
8.3 Where appropriate the opinion of the Council’s Legal Service should be sought.
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