Capacity and Consent 26.5.16

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)

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.

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

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

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.

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

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

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

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

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

Application in Practice Scenarios