Capacity and Consent 26.5.16

1. Capacity and Consent 26.5.16

2. Suite of Legislation • Human Rights Act (1998) • Adults with Incapacity (Scotland) Act (2000) • Mental Health (Care and Treatment) (Scotland) Act (2003) • Adult Support and Protection (Scotland) Act (2007) • Equality Act (2010)

3. Adults with Incapacity Act 2000 • To provide a legal framework for substituted decision-making where someone is unable to make a decision. • Before 2000 – Complex, inconsistent and some elements date back to middle ages. • Hierarchy of measures.

4. Roles and Responsibilities • Public Guardian. • Mental Welfare Commission. • Local Authority. • Care Inspectorate. • Health Board.

5. Adults with Incapacity Act 2000 Incapacity • Incapable of : • Acting or • Making decisions or • Communicating decisions or • Understanding decisions or • Retaining the memory of decisions

6. Adults with Incapacity Act 2000 • Assessment under Part 5 • Capable of understanding treatment. • Memory of decision. • Ability to weigh-up information. • Making a free choice.

7. Adults with Incapacity Act 2000 • Inability to communicate decision. • Irrational decisions. • Fluctuating conditions.

8. Adults with Incapacity Act 2000 • Medical Treatment. • Any procedure or treatment designed to safeguard or promote physical or mental health.” • Who Authorised to Assess and Sign Section 47

9. Principles of AWI Act • Benefit to person • Least restrictive option • Consider past and present views and preferences • Views of specific others • Encourage adult to develop and exercise skills

10. Decisions on intervention: a principle-based approach • determine whether or not the person lacks capacity • Practitioners must be satisfied that treatment should be given • Force should only be used if necessary-must be lawful and proportionate

11. The common-law principle of necessity in emergency situations (to convey the person to hospital and/or provide immediate treatment).

12. Application in Practice Scenarios