How well do doctors understand the Adults with Incapacity (Scotland) Act 2000?

 

Dr Andrew Donaldson

Specialist Registrar in Psychiatry

Dr Ziad Tayar

Specialty Trainee in Psychiatry

Dr Peter Connelly

Consultant Psychiatrist

 

Murray Royal Hospital, Perth, PH2 7BH, UK

 

Abstract

Aims and Method

We sought to explore doctors understanding of the everyday use of the Adults with Incapacity Act.

100 doctors from a variety of specialties were asked to complete a questionnaire based on a clinical case scenario.

Results

7% of doctors could recall all criteria for assessing capacity.  3% were able to recall all persons who should be consulted during capacity assessments.  There was uncertainty over which part of the Act should be used to provide medical treatment and who could complete the appropriate certificate.  There was misunderstanding about when to use the Mental Health Act as opposed to incapacity legislation. 

Clinical Implications

There is a clear need for the continuing education of doctors in the use of the Incapacity Act.  These findings have important implications for the introduction of the Mental Capacity Act 2005.

 

Declaration of interest: None

 


Introduction

 

The Adults with Incapacity (Scotland) Act 2000 was the first major piece of legislation in the UK to protect and enhance the care of adults deemed incapable of making decisions about their welfare, property or financial affairs because of mental disorder or inability to communicate.

Part five of the Act deals with medical treatment and research, providing a framework when considering “any procedure or treatment designed to safeguard or promote physical or mental health”.  When an adult cannot consent to treatment because of mental disorder or inability to communicate doctors must complete a Section 47 certificate of incapacity to authorise treatment.

Clinical experience and research literature1,2,3 suggests that there may be a lack of understanding among doctors about the appropriate use of the Act and the assessment of capacity.  We sought to explore this further.

 

Method

 

We constructed a clinical case scenario based on the management of an adult who may lack capacity to make decisions about his medical treatment because of mental illness

 

Case Scenario

You are attending to a 50 year old gentleman, Mr X, who complains of central chest pain.  He has a known history of ischaemic heart disease.  After further history taking, examination and investigations, you suspect he has acute coronary syndrome and requires medical treatment.

 

Mr X does not want to have medical treatment, however, and says he wants to die.  He has a history of recurrent depressive disorder and you suspect he may currently be suffering from a depressive episode.  Despite persuasion from health care staff and relatives, he adamantly refuses treatment but he is willing to stay in hospital to “die”.

(Doctors working in psychiatry were informed they have been contacted by a colleague in the general hospital for advice on how to manage the scenario)

 

We asked an opportunistic sample of 100 doctors working in NHS Tayside hospitals to complete an anonymous questionnaire containing nine questions based on the scenario which required either free text, multiple choice or extended matching type responses.  Participants were asked not to discuss the study with colleagues. One of the authors was available if any clarification was required. The only identifiers were length of clinical experience and specialty.

Our local ethics service office did not feel this study required full ethical review.

 

The Mental Welfare Commission for Scotland and the Medical Protection Society both endorsed our answers.

 

Results

 

From a wide range of specialties including psychiatry, medicine, surgery and accident and emergency medicine, 50 doctors with less than three years post-qualification experience and 50 doctors with three or more years experience completed the questionnaire. The same two authors reviewed all responses. For relevant questions, agreement was reached on whether the responses concurred with our answers.

 

7% of respondents were able to recall all criteria for assessing Mr X’s capacity to refuse treatment, however, 37% were unable to recall any of the criteria.  There were no significant differences between more and less experienced doctors.

When informed Mr X lacked capacity to make decisions about his medical treatment because of mental illness, only 3% of respondents were able to identify all persons whose views should be taken into account when determining what intervention, if any, should take place.  Again, there was no significant difference between the two groups of doctors.

When asked which section of the Incapacity Act would be most appropriate to use in this case, 8% were able to correctly answer section 47.

8% of respondents stated they would authorise “any treatment” on a section 47 form in this case.  54% would authorise treatment of acute coronary syndrome.  38% gave “other” answers including “unsure”, “life saving treatment”, “emergency medical treatment” and “no answer”.

Tables one to five show the responses to the remaining questions in the study.

 


Table 1. How respondents would proceed in the case scenario.

 

 

 

 

 

If you felt Mr X did not have capacity to make decisions about the treatment of his acute coronary syndrome because of mental illness, how would you proceed?

 

 

 

 

<3 years experience

≥3 years experience

Total

  • No medical treatment unless Mr X decides he wants it

0

0

0

  • No medical treatment unless Mr X requires emergency life saving treatment for acute coronary syndrome (i.e. he has become significantly more unwell) under Common Law against his will

10% (5)

18% (9)

14%

  • Use the Adults with Incapacity (Scotland) Act 2000 in order to give medical treatment for acute coronary syndrome immediately against his will

54% (27)

42% (21)

48%

  • Use the Mental Health (Care and Treatment) (Scotland) Act 2003 to detain him in order to give medical treatment for acute coronary syndrome against his will

14% (7)

24% (12)

19%

  • More than one of the above

18% (9)

12% (6)

15%

  • None of above

4% (2)

4% (2)

4%

(Underlined answers represent our view of the “correct”/ most appropriate response where applicable)

 

 

Table 2.  Where respondents would locate a section 47 incapacity certificate.

 

 

 

 

 

Where would you find a section 47 Adults with Incapacity form?

 

 

 

 

<3 years experience

≥3 years experience

Total

Internet

28% (14)

46% (23)

37%

Ward

72% (36)

38% (19)

55%

Other

0

2% (1)

1%

Unsure

20% (10)

26% (13)

23%

 

 


Table 3. Who respondents feel could complete a section 47 certificate.

 

 

 

 

 

Who can complete a section 47 Adults with Incapacity form?

 

 

 

 

<3 years experience

≥3 years experience

Total

Foundation year 1 doctors

12% (6)

14% (7)

13%

Foundation year 2 doctors

36% (18)

60% (30)

48%

Specialty trainees/ Specialist registrars

66% (33)

84% (42)

75%

General hospital consultants

90% (45)

86% (43)

88%

Consultant psychiatrists

88% (44)

84% (42)

86%

Unsure

2% (1)

4% (2)

3%

 

 

 

 

Number of respondents who agreed with our proposed answers

22% (11)

44% (22)

33%

 

 

Table 4. Duration of incapacity respondents would allow in Mr X’s case.

 

 

 

 

 

What duration of incapacity would you put on a section 47 Adults with Incapacity form in this case?

 

 

 

 

<3 years experience

≥3 years experience

Total

Median number of days (range)

7 days (1-365)

28 days (2-365)

 

Number of respondents who were unsure/ did not write a discreet number of days

30% (15)

32% (16)

31%

 

 


Table 5. Respondents views on whether Mr X can be detained in hospital under incapacity legislation.

 

 

 

 

 

Mr X has now decided he wishes to leave hospital.  If you felt he lacked capacity to make this decision because of mental illness and needed to stay for treatment of his physical health problems, can he be detained in hospital against his will under the authority of section 47 Adults with Incapacity Act?

 

 

 

 

<3 years experience

≥3 years experience

Total

  • Yes, in any hospital

30% (15)

48% (24)

39%

  • Yes, but only in a psychiatric hospital

6% (3)

4% (2)

5%

  • Yes, but not in a psychiatric hospital

4% (2)

2% (1)

3%

  • No

38% (19)

24% (12)

31%

  • Unsure

22% (11)

22 (11)

22%

 

 

Discussion

 

In contrast to a recent study of Scottish psychiatrists4, but in keeping with an Accident and Emergency Department based study3, this study highlights some significant concerns about doctors’ understanding of the Adults with Incapacity Act.  Only 8% of respondents knew which section of the Act should be used to authorise the medical treatment of an incapable adult. Very few doctors were able to recall all criteria for assessing capacity (ability to act, or make decisions, or communicate decisions, or understand decisions, or retain the memory of decisions) and over a third could not recall any criteria.  Unlike McCulloch4, only 27% of senior psychiatrists knew all the criteria. Even those doctors with most use of the Act may not have as good an understanding of the legislation as anticipated.

Fewer than half those surveyed stated the patient’s views should be taken into account when determining what intervention should take place.  Respondents were much more likely to consult the nearest relative or other persons who had an interest in the patient’s welfare including other doctors.  This may indicate a paternalistic approach and is not in keeping with the general principles of the Act.   

Section 47 forms should be completed by “the medical practitioner primarily responsible for the medical treatment of an adult”.  In practice, this will be the most senior doctor on duty.  Unlike all other grades, we believe foundation year one doctors are unable to complete the form as they should never be the most senior doctor on duty.  Only 48% of respondents believed that foundation year two doctors can authorise treatment under section 47 which raises questions as to how incapable patients are managed when these doctors are the most senior medical staff in the hospital.

In our clinical scenario, the patient requires urgent but not emergency medical treatment and we feel he should be treated under the authority of the Adults with Incapacity Act, which is the preferred management plan for the majority of respondents.  Our case did not resist treatment. The Act authorises the use of force but “only when immediately necessary and only for so long as is necessary in the circumstances”.  It may be argued that the Common Law of “necessity” should be used to give Mr X treatment immediately against his wishes.  The concept of “necessity” is unclear in Scots Law, though, and the General Medical Council state that emergency treatment without consent should be given only when it is not possible to find out a patient’s wishes5.

The Mental Health (Care and Treatment) (Scotland) Act 2003 allows for the treatment of mental illness in those deemed to have impaired decision-making ability, but specifically excludes the medical treatment of physical problems not related to mental disorder.  In the scenario presented, the acute medical problem does not appear to be related to the mental disorder. 40% of our respondents would wrongly use the Mental Health Act to authorise medical treatment.

There is no standard for the type of medical treatment authorised by a section 47 certificate in this clinical scenario, nor for the duration of treatment. Capacity to consent to treatment is not an “all or nothing” decision and may change depending on the treatment being considered.  “Any medical treatment” may be inappropriately general and not the least restrictive option as demanded by Act.  Capacity needs reassessed frequently due to its dynamic nature.  We would suggest a certificate in this case should be issued initially for approximately 7 days which should allow sufficient time to treat the acute medical problem.  Though not significant, experienced doctors opted for a longer duration of incapacity (median 28 days) than their junior colleagues (median 7 days).  The reasons for this are unclear.

Longer-term management of a mentally ill adult lacking capacity may require concurrent use of the Adults with Incapacity and Mental Health Acts. Our patient could be detained in hospital under the Incapacity Act if he wished to leave but he should be assessed as soon as practical by a registered doctor to determine the need for the use of the Mental Health Act to treat his mental disorder.  32% of respondents in our survey did not believe the Incapacity Act authorised detention in hospital.  We did not ask this group of doctors how they would then manage this scenario however we would hope they would appreciate the need for the patient to remain in hospital and receive medical treatment.

Conclusions

The Adults with Incapacity Act is perceived as a long overdue formalisation of the law for a particularly vulnerable group of people.  Proper understanding of its use by doctors is essential if it to be effective in its aims.  We have identified a clear need for the continuing education of doctors of all grades and specialties in the use of the Act. The findings from this study have important implications for the introduction of the Mental Capacity Act 2005 in England and Wales.

 


References

1. Ramsey S.  The Adults with Incapacity (Scotland) Act – Who knows? Who cares?  Scottish Med. J  2005; 50(1): 20-23

2. Schofield C.  Mental Capacity Act 2005 – what do doctors know? Med  Sci Law 2008; 48(2): 113-116

3.  Hassan T, MacNamara AF, Davy A, Bing A. and Bodiwala GG.  Managing patients with deliberate self harm who refuse treatment in the accident and emergency department.  BM J 1999;  319: 107-109.

4.  McCulloch J. (In)capacity legislation in practice.  Psychiatr Bull 2009;  33: 20-22.

5.  General Medical Council (2008).  Consent: patients and doctors making decisions together. GMC

(http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_scope_of_treatment_in_emergancies.asp)

 

Statutes

 

Adults with Incapacity (Scotland) Act 2000

Mental Health (Care and Treatment) (Scotland) Act 2003

Copyright Priory Lodge Education Limited 2010

First Published October 2010

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