Adults with Incapacity (Scotland) Act 2000: Review of Part 5 Code of Practice – Medical Treatment

1. Comments on Adults with Incapacity (Scotland) Act 2000: Review of Part 5 Code of Practice

Point 2.46. The bullets do not all follow the stem, which implies a list of treatments, not safeguards.

Point 2.47. Is the first sentence absolutely true? It is generally true, but there could conceivably be a patient who had two mental disorders, one subject to the 2003 Act (e.g. a depressive or psychotic illness), and one covered by the 2000 Act (dementia or a learning disability). Point 2.49 also suggests that the statement cannot be absolute.

Point 2.49. The last two sentences should be interchanged. Treatment is likely to be only for emergency purposes, but if there was the possibility of non-emergency treatment, then the 2000 Act might be relevant.

Page 21 question: Including orders under criminal provisions would add complications. Suggest that readers of the Code of Practice are referred to specialist colleagues or the Mental Welfare Commission.

There are two point 2.49s, which are at variance. The second 2.49 contradicts the advice in the first.

Point 2.50. This needs to be linked in logic to the first 2.49. Again, while generally true that the 2000 Act should be used for short-term treatment only, the third sentence emphasises that this will not always be the case. Would it be better to leave this paragraph out, or to say that close attention needs to be paid to the length of any certificate in line with the Principle of Least Intervention?

Point 2.51. The advice on the interface between the two Acts is urgently needed. The year 2005 should be inserted after “5 October”.

Point 2.52. Again, “detention” is not the correct term, although detention is often the power necessary in such cases.

Page 22 question: There is a need for further guidance as to what is meant by “continued resistance”; it needs to be as clear as possible what the meaning of ‘force or detention’ is.

Point 2.55. An Intervention Order might be more appropriate in the example given.

Point 2.56. “Overt” should presumably read “covert”. The first sentence should be expanded to include “where other alternatives have been explored and none are practicable” and “where there has been full consultation with informal and formal carers and with the adult as far as that is possible”. Professionals who may be requested to administer covert medication should make themselves fully aware of the guidance of their own professional bodies and of the Mental Welfare Commission: Restraint of Residents with Mental Impairment in Care Homes and Hospitals (1998).

It should also be made clear that doctors prescribing medication or other treatments covered by a treatment plan for an adult with incapacity should always have in mind any potential difficulties in the administration of that treatment, and should discuss such difficulties fully with the all involved in administration of the treatment, whether professional or informal carers.

Alzheimer Scotland has suggested that the covert medication might suitably be covered by Regulations under the Act, perhaps requiring a second opinion and / or reporting to the Mental Welfare Commission under particular circumstances.

Point 1.23.8 Insert “it is” between “circumstances” and “a statutory requirement”.

Point 1.26 In 3rd last line insert “also” between “and” and “a decision to treat the adult”.

Points 2.67 and 2.68 are repeats.

Point 2.72. There is a heading missing. This is a new subject. The word “disapplies” does not appear in the dictionary; therefore, should be replaced.

Point 4.5. The term “incapacitated adults” is not in keeping with the spirit of the Act. The term “professional legal representative” needs to be defined here.

2. Comments on Adults with Incapacity (Scotland) Act 2000: Draft Regulations

Extending certificates to three years should not diminish the importance of regular and comprehensive re-assessment of any ongoing treatment. In addition, widening the professional groups issuing certificates should not diminish the comprehensive, inter-disciplinary consultation in assessing the needs of adults with any incapacity, always involving the adults concerned and their informal carers.