British Psychological Society response to the Scottish ... · Adults with Incapacity Reform British...

Adults with Incapacity Reform British Psychological Society

April 2018

1

British Psychological Society response to the Scottish Government

Adults with Incapacity Reform About the Society The British Psychological Society, incorporated by Royal Charter, is the learned and professional body for psychologists in the United Kingdom. We are a registered charity with a total membership of just over 50,000. Under its Royal Charter, the objective of the British Psychological Society is "to promote the advancement and diffusion of the knowledge of psychology pure and applied and especially to promote the efficiency and usefulness of members by setting up a high standard of professional education and knowledge". We are committed to providing and disseminating evidence-based expertise and advice, engaging with policy and decision makers, and promoting the highest standards in learning and teaching, professional practice and research. The British Psychological Society is an examining body granting certificates and diplomas in specialist areas of professional applied psychology. Publication and Queries We are content for our response, as well as our name and address, to be made public. We are also content for the Scottish Government to contact us in the future in relation to this inquiry. Please direct all queries to:-

Joe Liardet, Policy Advice Administrator (Consultations) The British Psychological Society, 48 Princess Road East, Leicester, LE1 7DR Email: [email protected] Tel: 0116 252 9936

About this Response The response was jointly led on behalf of the Society by: Dr Alison Clark CPsychol, Division of Clinical Psychology With contributions from: Dr Breda Cullen CPsychol, Division of Neuropsychology Dr Maggie Whyte CPsychol, Division of Clinical Psychology and Division of Neuropsychology Dr Karen Stevenson CPsychol, Division of Clinical Psychology Dr Sharon Horne-Jenkins CPsychol, Division of Clinical Psychology Dr Susan Ross CPsychol AFBPsS, Division of Clinical Psychology Dr Patricia Mooney CPsychol, Division of Clinical Psychology

We hope you find our comments useful.

Alison Clarke Chair, BPS Professional Practice Board

Dr Beth Hannah CPsychol AFBPsS Chair, BPS Scotland Branch

mailto:[email protected]


April 2018

2

British Psychological Society response to the Scottish Government

Adults with Incapacity Reform

Chapter 3 - Restrictions on liberty Do you agree with the overall approach taken to address issues around significant restrictions on a person’s liberty?

1.

Yes No

*

Please explain your answer:

The Society believes that the Adults with Incapacity Act (AWIA) requires definition of ‘significant restrictions’ and a lawful process within the Act for persons who may need deprived of liberty. We believe that clear processes are required to provide for significant restrictions on liberty within AWIA. We welcome that a focus on how someone lives as much as where, is also useful for all involved.

In particular we are suggesting that significant restrictions on liberty be defined as the following;

The adult is under continuous supervision and control and is not free to leave the premises

barriers are used to limit the adult to particular areas of premises;

the adult’s actions are controlled by physical force, the use of restraints, the administration of medication or close observation and surveillance

Do you agree with this approach?

2.

Yes No

*

Please give reasons for your answer: The Society welcomes the list of actions that are suggested as defining as restrictions on liberty.

Are there any other issues we need to consider here?

3.

Page 12 – paragraph 4 - where it refers to it being “clear that there is no apparent objection” the Society welcomes this but feels this comment requires clarification.


April 2018

3

*****

Page 13 paragraph 2 states that “…where it is clear that a person seeks through words or actions to express their wish to be in a given place and to receive care and treatment in a given manner, that may include significant restrictions on their liberty, then in keeping with the aims of Article 12 of United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), that wish can be considered as giving valid consent for the purposes of Article 5 ECHR”.

The Society has concerns that equating a “wish” with “valid consent” is problematic. The Society recommends the definition of valid consent be clarified within this paragraph, and should be explicitly distinguished from the expression of a wish. The Society is aware that expressing an opinion or wish does not constitute capable (or valid) consent. A person may be compliant with the placement/ care/ treatment however not have the cognitive capacity to understand the implications of the placement/ care/ treatment and are therefore not able to make a capable decision about the proposed action. Proceeding without safeguards in place would constitute a deprivation of liberty. Due to the Bournewood case, amendments were made to the Mental Capacity Act to ensure where there is a deprivation of liberty and someone is not capable of consenting to an intervention, that there is a Deprivation of Liberty (DOLs) assessment (Department of Health, 2006). This ensures that the procedures and intervention are in a person’s best interests.

Where significant restrictions on liberty are being considered for a person there needs to be a clear procedure for clinicians to follow. The Society recommends that an individual’s understanding of the process must be established, with other means also used to facilitate explanations and promote understanding. Additionally, the Society recommends the use of Advocacy Services for individuals in such situations.

The Society recommends guidance within the Act must address issues of consent and capacity, not just consent. There needs to be very clear distinction between a person expressing a wish (which must be taken into account) and a person giving ‘valid consent’. Where a person lacks capacity, action must be taken to ensure the principles of the AWIA are followed, and to ensure no arbitrary deprivation of liberty occurs whether a person does or does not give consent.

*****

Re supported decision making

The Society feels there are 2 important aspects to be considered.

1. Facilitating expression of opinion. People are often confronted with significant life decisions e.g. where to live, whether or not to have care, whether or not to sell a house, where their cognitive deficits mean that their decision making in these areas is impaired. Through rehabilitation, cognitive abilities may improve, however incapacity to make a decision may remain. It is important in these cases to facilitate people to be able to express their opinion on a decision. This might include explanation of the decision and the likely options, adjusting the presentation of information to account for cognitive deficits, enabling communication.


April 2018

4

2. Facilitating capacity to make a decision. For some people however, providing support for decision making might enable them to make capable decisions when previously they were not able to. For example, someone with significant memory problems might need information recorded on paper, someone with executive functioning (planning and organising) problems might have capacity improved by assistance to organise information. Cognitive rehabilitation is evidence based (Cicerone et al 2011) and can be delivered by a number of professions (Occupational Therapy, Speech and Language Therapy, Clinical Psychology, Clinical Neuropsychology) although where the presentation is complex, advice and formulation from a Clinical Psychologist is advisable.

The Society recommends every effort to support the adult to understand the proposal and to express their view should be made. This may involve consultation with a professional who is able to assess how cognitive deficits are affecting the person’s understanding and ability to express their view and advise on support to facilitate their understanding and communication.

*****

In situations involving a person who lacks capacity to make decisions about an intervention that may place significant restrictions on their liberty, there needs to be a clear process ensuring representation and support for decision making and ensuring adherence to the principles of the AWIA. The inclusion of specific criteria in guidance should be considered. This process should be undertaken whether or not the person shows objection with the proposed restrictions. Assigning responsibility for ensuring this process to a named clinician e.g. Mental Health Officer, Psychiatrist, Medical Consultant, Clinical Psychologist, Clinical Neuropsychologist.

The Society would welcome guidelines on the use of significant restrictions of liberty in situations when time is of the essence. ***** The Society wishes to highlight the importance of graded restrictions, such as assistive technology as prompts and alerts based on the least restrictive option for the level of risk.

Chapter 4 - Principles of Adults with Incapacity legislation Do you agree that we need to amend the principles of the AWI legislation to reflect Article 12 of the UNCRPD?

4.

Yes No

*

Please give reasons for your answer: The Society believes that AWIA should be amended in line with Article 12 as far as practicable, while recognising the complexity involved (as discussed by the Essex Autonomy Project and others).


April 2018

5

Does our proposed new principle achieve that?

5.

Yes No

*

Please give reasons for your answer: Re the proposed principle “There shall be no intervention in the affairs of an adult unless it can be demonstrated that all practical help and support to help the adult make a decision about the matter requiring intervention has been given without success.” The Society agrees there should be an obligation to provide “all practical help and support to help the adult make a decision”. The Society would welcome a clearer definition of what “success” means, as stated within this principle; does this mean that the person comes to any decision at all, regardless of the perceived quality of that decision? ***** The Society wishes to highlight the considerable expertise and experience of Clinical Psychologists, Clinical Neuropsychologists 1 in planning and providing such help and support to those whose cognitive functioning and decision-making ability and capacity has been affected by neurological illness or injury. For example, Clinical Psychologists and Clinical Neuropsychologists can provide expert assessment and formulation of cognitive barriers to decision-making, and provide interventions (including jointly with other professionals) to overcome those barriers. Indeed, work by Clinical Psychologists and Clinical Neuropsychologists can involve rehabilitation for cognitive impairment. Cognitive rehabilitation is an effective intervention for people with cognitive difficulties (Cicerone, 2011). The cognitive skills of attention, procession speed, memory, planning and organising and flexible thinking all impact on decision making. In order to make a decision, we need to attend to information (so that it can be processed, evaluated or remembered), remember that information, organise the information (so that we can prioritise and evaluate the information), think flexibly about different options and outcomes and internally manage this information to come to a decision. These skills can be supported by both internal strategies (e.g. learning to make sure attention systems are ‘switched on’) and external strategies (e.g. presenting in writing externally organisation of information pertinent to a decision). There are also lots of adaptations that can be made in the presentation of information that can facilitate decision making e.g. breaking down information into manageable elements, repeating information, presenting information at a pace that the individual can manage to internalise. Additionally, psychological intervention can also be specifically targeted at individualised decision making e.g. increasing an individual’s awareness of the impact of thinking biases on their decision making.

1 Other Applied Psychologists such as Forensic, Counselling Psychologists are also likely to have expertise in

this area.


April 2018

6

For every person, making a decision is individual, and each decision has different implications for the individual involved. Cognitive deficits and emotional problems add another layer of complexity. In order to help and support decision making, it may be necessary to engage a professional experienced in assessing the impact of cognitive functioning and emotion and providing suggestions for facilitating decision making ability.

*****

The Society would welcome guidelines in the AWIA specifying what demonstrable help and support looks like, how it can be measured and evaluated, how long such approaches should be used for and what training/education those involved should have had before helping and supporting individual decision making.

Is a further principle required to ensure an adult’s will and preferences are not contravened unless it is necessary and proportionate to do so?

6.

Yes No

*

Please give reasons for your answer:

The Society acknowledges that in many scenarios it may be very difficult to make a judgement about what is necessary and proportionate and parameters around that would be welcomed. This highlights the importance of taking into account previous wishes and behaviours of an individual. It is important to include a principle to ensure an adult’s will and preference is not contravened unless necessary, would help protect the preferences of such adults. However, the Society acknowledges enforcing this principle may be difficult in practice.

The Society notes that the current AWIA principles describe several factors (benefit, least restriction, past and present wishes and feelings of the adult, and views of other relevant parties), none of which are given precedence over the others. Since UNCRPD Article 12 places a much stronger emphasis on the “rights, will and preferences” of the person, a new principle will bring AWIA into closer alignment with this. The Society would like to see more information about how this would operate in practice, e.g. in light of similar provisions (“special regard”) made within the Northern Ireland Mental Capacity Act.

Are there any other changes you consider may be required to the principles of the AWI legislation?

7.

Yes No

*

Please give reasons for your answer:


April 2018

7

Chapter 5 - Powers of attorney and official supporter Do you agree that there is a need to clarify the use of powers of attorney in situations that might give rise to restrictions on a person’s liberty?

8.

Yes No

*

The Society is aware of cases where once a client has understood the details of a Power of Attorney (POA) they have been able to make a more informed decision about the POA’s relevance to them. We welcome the use of advance statements. The Society would welcome a requirement for clear instructions on how the granter wishes their incapacity to be determined before a power comes into effect.

If so, do you consider that the proposal for advance consent provisions will address the issue?

9.

Yes No

*

Please give reasons for your answer: The Society welcomes that provision for this, along with related safeguards and review procedures, would be helpful. The Society recommends standard wording should be used in the POA document, along with an explicit definition of significant deprivation of liberty. Then Society asks that provisions be made to take into account the possibility of relationship break down after a POA has been put in place. This is important as some of our client groups can have challenging and changeable relationships with significant others.

Is there a need to clarify how and when a power of attorney should be activated?

10.

Yes No

*

If you have answered yes and have views on how this should be done, please comment here.


April 2018

8

The Society recommends this should come into effect for specific and stated decisions following an assessment of capacity. Thus a welfare POA should be activated when the granter has been deemed to lack capacity to make the welfare decision at hand. Capacity is decision specific. This is recognised by the Act and the powers of a Guardian are laid out in accordance with this. This should be the same for POA. On activation of POA the process of clarifying the powers of that POA should be specified in the same way as an application for Guardianship. Therefore, it would be prudent at the time of making a POA for the person to be asked to specify the decisions they wish their POA to make.

Incapacity should be confirmed by a professional with suitable training and experience. The Society recommends such suitable professionals may include Clinical Psychologists or Clinical Neuropsychologists.

The Society is concerned some Power of Attorneys have been granted when Welfare Guardianship would have been the more appropriate option.

Do you think there would be value in creating a role of official supporter?

11.

Yes No

*

If you have answered yes, please give us your views on how an official supporter might be appointed.

The Society is aware that some people can have cognitive deficits that affect their decision making capacity yet retain capacity. In these situations, an official supporter for decision making would facilitate decision making. There would need to be safeguards in place for this process. Impairment of cognitive functioning can make people vulnerable and the position of official supporter will be a position of trust and influence. The Society believes that the decision for someone to be appointed as official supporter should primarily be that of the person requiring support, however opinion on this should be sought from others that know the person well including family members, carers and professionals working with the person, to ensure that the person assigned is suitable. The Society feels this procedure needs to be clarified in guidance. There would need to be guidelines in place about the characteristics required of an official supporter, the safeguards in place and there should be training opportunities/website support available for official supporters.

The Society proposes this process should also avoid confusion regarding the identity, role and scope of a supporter and that of an attorney working under a POA.

Countries that have created a role of supported decision maker have used different names, such as supportive attorney in Australia, or a ‘Godman in Sweden, meaning custodian. We have suggested ‘official supporter’. Do you think this is the right term?

12.


April 2018

9

Yes No Prefer another term

*

If you selected 'Prefer another term', please give details. The Society believes that the term ‘official supporter’ doesn’t adequately conveys the legal nature of the role and the responsibility held. We would recommend that ‘registered supporter’ would be a more suitable.

Chapter 6 - Capacity assessments Should we give consideration to extending the range of professionals who can carry out capacity assessments for the purposes of guardianship orders?

13.

Yes No

*

If you answered yes, can you please suggest which professionals should be considered for this purpose?

The Society recommends the core competencies in the training of the professionals being considered as suitable for assessing capacity be taken into account, and that any professional assessing capacity must be able to identify, assess and make a clinical judgement about the impact of emotional and cognitive functioning on decision making. They must also be able to judge when the opinion of a professional with specialist skills in assessing capacity should be consulted and such specialist professionals should always be consulted when these judgements are complex.

The Society proposes that Clinical Psychologist and Clinical Neuropsychologists be considered to carry out capacity assessment for the purposes of Guardianship orders. They have the relevant training and expertise to assess and make judgements about cognitive, behavioural and emotional difficulties that impact on capacity to make decisions. They are often asked by Medical doctors and Psychiatrists to undertake assessments which directly inform decisions about capacity.

Assessing capacity can be straightforward and can also be complex. Where a person presents with severe level of functioning e.g. severe Learning Disability, late stages of Dementia, then although incapacity should not be assumed, judgements about capacity might be easier to make. However, often patients can have varied abilities e.g. a person with severe TBI may have good language skills but severe impairment of mental flexibility, a person with mild LD may have good language and memory but significant impairment of planning and organising skills, and the level of ability and how this is impacting on decision making is a difficult clinical judgment to make.

Therefore, caution must be taken, however, as factors contributing to incapable decision making may not be apparent to those without training and experience in the area e.g. patients with brain injury and severe executive functioning difficulties may be able to talk though their choices but when faced with the demands of a real life


April 2018

10

situation, not be able to manage the information and make a capable decision (Owen et al, 2015)

Clinical Psychologists and Clinical Neuropsychologists work with patients with a wide range of neurological disorder that can affect cognitive and emotional functioning, including Learning Disability, Traumatic Brain Injury, Multiple Sclerosis, Parkinson’s disease, Alzheimer’s disease, Frontal-temporal Dementia, Stroke, Subarachnoid haemorrhage, Tumour and mental illness such as OCD, depression, anxiety, psychosis. Clinical Psychologists and Clinical Neuropsychologists are frequently asked to conduct assessments and give opinions on patients’ capacity to make specific decisions. These requests can come from Psychiatrists, GPs, Medical doctors, Mental Health Officers, Social Workers or Care Managers and mostly in complex circumstances where these judgements are difficult to make.

Clinical Psychologists and Clinical Neuropsychologists have Doctorate training and expertise in the impact of changes in the brain on thinking processes and how a person’s neurological, psychiatric and/or psychological presentation can impact on their brain functioning and decision making ability. Further details below.

Clinical Psychologists and Clinical Neuropsychologists possess relevant knowledge and skills in relation to neuropsychological issues. They are trained and practiced in neuropsychological presentations and complex neuropsychological assessment, which measures the impact of injury or damage in the brain on thinking processes. Of relevance to capacity assessments this may mean providing a profile of intellectual functioning, conducting a memory assessment, assessments of attention and concentration, an assessment of verbal skills (comprehension and expression), an assessment of information processing, an assessment of executive functioning and reasoning and/or an assessment of that person’s learning potential.

Clinical Psychologists and Clinical Neuropsychologists possess the relevant knowledge and skills in relation to assessment processes such as they are trained in the delivery and interpretation of psychometric assessments and are aware of issues of validity, reliability and standardisation methodology. They are trained in the interpretation of both standardised and non standardised tools. They have experience of conducting many such assessments with patients. When working with specific patient population groups they have experience of using adapted communication to adjust their interview style to the situational demands, such as breaking-up information into smaller ‘chunks’, using simpler language, pictorial aids and using non-verbal measures.

Clinical Psychologists and Clinical Neuropsychologists possess the relevant knowledge and skills in relation to mental health considerations. They are aware of the presentation of mental health difficulties and how to assess effectively for them. They are aware of the impact difficulties such as low mood or anxiety can have on information processing, memory abilities and decision making. They are also aware of the impact emotion can have on decision making processes in addition to the effects of substance misuse. Clinical Psychologists and Clinical Neuropsychologists are aware of how decisions are made (the individual steps that lead to effective decision making) and are aware if any steps have been missed, or have not been executed correctly, when a decision is made.

Clinical Psychologists and Clinical Neuropsychologists possess the relevant knowledge and skills in relation to cognitive processing. They have experience of


April 2018

11

interviewing people about internal processes. They assess attentional and attributional biases in patients’ perceptions of situations. They are aware of potential acquiescence, suggestibility and the fear of negative evaluation affecting decision making abilities. They are aware of impulsivity issues, assess for motivational issues and for levels of insight and readiness to change. They are practiced in the assessment of a person’s beliefs and attitudes and how they may be impacting on that person’s decision making ability. They are also aware of potential lack of assertiveness or a lack of social skills impacting on a person’s ability to communicate decision making.

Clinical Psychologists and Clinical Neuropsychologists also possess the relevant knowledge and skills in relation to formulation processes. They are trained and supervised in holistic formulation models that take into account many factors that may be impacting on the person’s psychological and cognitive functioning at that time and also factors that may be promoting their functioning. Psychological formulations include the examination of personal, physical, psychosocial and situational demands placed on the person and the resources and supports available to them. Within a formulation model the cultural or social environments the person lives in and the influence of others on that person’s presentation is considered. Formulations are based on a wide range of information including medical background (e.g. which areas of the brain have been affected), psychiatric history, information from close family members or carers, detailed interview with the patients, information from others that have had professional involvement with the patients. Clinical Psychologists and Clinical Neuropsychologists also make clinical judgement on prognosis (i.e. whether improvement or deterioration is expected).

Clinical Psychologists and Clinical Neuropsychologists possess the relevant knowledge and skills in relation to evidence based practices. They are trained to be scientist-practitioners, not only referring to published evidenced based studies in their work but also in developing hypotheses and testing them in an experimental way. This approach has trained Clinical Psychologists and Clinical Neuropsychologists to effectively investigate and test facts as opposed to reporting opinions.

It is notable the skills of a Clinical Psychology trained professionals in assessing capacity are well recognised in the UK and abroad. Moberg and Shah (2012) in a review of ethical issues in capacity and competency evaluations comment that assessment “demands the use of reliable and valid assessment strategies that covers the broad domains of neuropsychological functioning, decisional capacity, psychiatric and emotional factors and functional capacity” and highlights the skills of Clinical Psychologists as being ideally suited to “assessing competency in both neuropsychiatric and neurological illness”. Demakis (2012) points to the “advantages of having a broad training in clinical psychology, psychological and cognitive assessment, and neurological disease and dysfunction” for assessing capacity. Dimond (2016) in her review of the legal aspects of the Mental Capacity Act (2005) highlights Psychiatrists and Clinical Psychologists as the professions most frequently used to provide an expert opinion on whether a patient/client has mental capacity. The American Bar Association and the American Psychological Association have collaborated on guidance for assessing capacity due to legal recognition in the USA of Psychologists as appropriate expert witnesses in this field (American Bar Association Commission on Law and Aging and American Psychological Association, 2005).

Of relevance, The Society recognise the competencies of Psychologists in assessing capacity and has produced guidance for their members (BPS 2006, 2011). There is


April 2018

12

an associated evidence base regarding the assessment of capacity by Psychologists that provides a framework for current practice; one example being, within the learning disabilities speciality, work by Arscott et al (1997 and 1999), Wong et al (2000), Cea and Fisher (2003), Murphy and Clare (2003) and Ferguson and Murphy (2014).

It is unfortunate that currently Scottish law does not recognise the professional expertise of Clinical Psychologists and Clinical Neuropsychologists in assessing capacity and this is a constant frustration to patients, their families and referrers.

Chapter 7 - Graded guardianship Do you agree with the proposal for a 3 Grade guardianship system?

14. Please give reasons for your answer.

The Society welcomes the proposal of a graded Guardianship system as the current system means long waits and can be a complex process, meaning that interventions that would benefit the adult are delayed and often predicted powers rather than required powers of a Guardian are applied for. In some of these situations, the process required is more complex than would seem necessary e.g. when all parties are in agreement and decisions are for day to day matters.

The Society wishes to highlight the potential risks and need for safeguards in cases where an individual appears ‘compliant’. The Society recommends that guidelines be stated in such a way that users, especially those without the means to elicit support in the process, may not be at a disadvantage.

Our intention at Grade 1 is to create a system that is easy to use and provides enough flexibility to cover a wide range of situations with appropriate safeguards. Do you think the proposal achieves this?

15.

Yes No

*

Please give reasons for your answer.

The Society believes that a stage one Guardianship process (with application on line as described) would be a useful development and allow representation for decision making for patients who need support but do not have significant life changing decisions required.

However, the Society recommends the Review to reflect whether Grade 1 Guardianship covers a great deal and, whether as applications do not need to be heard by sheriff, this process is potentially open to misuse.


April 2018

13

The Society believes that clarification is needed on whether there will be any supervision of Guardians at this level. We note this level provides for substantial financial powers with minimal oversight. The Society notes a tight turn around quoted for interested parties’ opportunity to raise objections and wonders whether a longer time span should be considered. The Society notes a Mental Health Social Worker being the professional who comments on welfare matters regarding capacity, and we suggest a GP may also be able to comment on this. Persons with neurological illness or injury might not be known to mental health services at all, instead being diagnosed and followed up by the GP and/or Neurology services. It therefore seems unnecessary to require the involvement of a Mental Health Social Worker, which may add further confusion and distress to the patient and family.

Are the powers available at each Grade appropriate for the level of scrutiny given?

16.

Yes No

*

Please give reasons for your answer. As noted above, the Society questions whether Grade 1 Guardianship appears to provide for substantial financial powers, with arguably insufficient oversight.

Grade 2 and 3 Guardianship – Scrutiny and Process

The Society is concerned those who are compliant with a decision are treated differently than those who disagree with a decision. This is the very crux of the Bournewood case, in that the patient was arbitrarily deprived of liberty as he was incapable of making the decision about detention but compliant and therefore process involving due scrutiny of the decision and thus protection of his rights was not followed. Therefore, in considering the requirements for Grade 2 and Grade 3 Guardianship, the Society recommends the same consideration of evidence and scrutiny of adherence to the principles of the Act, should be applied to those who are compliant and those who are not.

In both application for Grade 2 and Grade 3 Guardianship, there needs to be a very clear process of scrutiny and documentation that the principles of the AWIA have been followed and this should be clearly documented. As previously suggested:

The Society recommends a certificate of incapacity makes clear the process of assessment and the evidence for incapacity. This should include opinion of the person being assessed, others consulted, interview conducted, any formal cognitive assessment and the justification for the opinion that the person is incapable. It should document the measures taken to facilitate decision making.


April 2018

14

The Society proposes that Clinical Psychologists and Clinical Neuropsychologists be considered to carry out capacity assessment for the purposes of Guardianship orders, and especially for those at Grade 2 and Grade 3.

We are suggesting that there is a financial threshold for Grade 1 guardianships to be set by regulations. Do you have views on what level this should be set at? For example the Public Guardian requires that financial guardians have to seek financial advice on the management of the adult's estate where the level is above £50,000. Would this be an appropriate level, or should it be higher or lower?

17. The Society has no comment to make.

We are proposing that at every Grade of application, if a party to the application requests a hearing one should take place. Do you agree with this?

18.

Yes No

*


The Society agrees there should be opportunity for higher level of scrutiny at each process, as there may be a number of circumstances where disputes arise e.g. family conflict, disagreement between the proposed Guardian and person themselves, the concerns of involved professionals.

We have listed the parties that the court rules say should receive a copy of the application. One of these is ‘any other person directed by the sheriff’. What level of interest do you think should be required to be an interested party in a case?

19.

Although difficult to define the Society proposes any person who evidences an interest should evidence knowledge and involvement with the person and be able to provide information that represents that person’s views. This shouldn’t be just family involvement and examples may include a professional such as a Clinical Psychologist, Occupational Therapist or Speech and Language Therapist working with that person, or a friend.


April 2018

15

The Society recommends every attempt should be made to gather current information on the quality of relationships as many of the clients that we support (such as in the context of Addictions and Alcohol Related Brain Damage) have challenging relationships or the nature of relationships can change over a short period.

We have categorised Grade 3 cases as those where there is some disagreement between interested parties about the application. There are some cases where all parties agree however there is a severe restriction on the adult’s liberty. For instance very isolated and low stimulus care settings for people with autism, or regular use of restraint and seclusion for people with challenging behaviour. Do you think it is enough to rely on the decision of the sheriff/tribunal at Grade 2 (including a decision to refer to Grade 3) or should these cases automatically be at Grade 3?

20. The Society believes, due to the human right issues involved, such cases should automatically be seen as Grade 3 cases.

Please add any further comments you may have on the graded guardianship proposals.

21.

The Society recommends assessment of capacity for Grade 2 and 3 Guardianship is made by a professional with qualifications and experience in assessing the impact of cognitive and emotional functioning on decision making and who is experienced in the impact of the person’s disorder e.g. a Clinical Psychologist, Clinical Neuropsychologist, Psychiatrist, Neurologist, Rehabilitation Medicine Consultant. Where this pertains to mental illness then this should be a Section 22 doctor or a Section 22 registered clinician. The Society feels the inclusion of registered clinician is important here due to potential changes in the Mental Health Act (MHA).

The Society strongly recommends that 2 clinicians consult on the judgement of capacity in Grade 2 and Grade 3 Guardianship applications. Where there is disagreement that cannot be resolved then this is referred to the Mental Welfare Commission for independent assessment.

The Society recommends a certificate of incapacity make clear the process of assessment and the evidence for incapacity. This should include opinion of the person being assessed, others consulted, interview conducted, any formal cognitive assessment and the justification for the opinion that the person is incapable. It should document the measures taken to facilitate decision making. In this way, any panel considering the appropriateness of Guardianship can view the evidence for incapacity and make a more informed decision.

The application for Grade 2 or 3 Guardianship is triggered by the need for representation for decisions that are significant in a person’s life. The decisions required are often life changing. In the proposed changes, whether or not the


April 2018

16

application goes ahead is dependent on the opinion of a sole practitioner assessing capacity - a Section 22 doctor.

In the 3 examples given in chapter 7, the Society feels the capacity of the individual appears to be uncontested but that in reality, many people who are considered as possibly requiring Guardianship, the assessment of capacity is not straight forward and these judgements can be difficult to make.

Clinical Psychologists and Clinical Neuropsychologists are frequently asked to assess decision making ability and give information to inform the assessment of capacity where there is uncertainty or disagreement between medical Doctors. Restricting this assessment to one individual increases the potential for errors and misrepresentation of patients’ rights. In addition, many of the people requiring support for decision making are not those with mental disorder but are those whose thinking processes have been affected by a neurological condition or incident e.g. Stroke, Traumatic Brain Injury, Multiple Sclerosis, Tumour, Encephalitis.

For example, a patient with advanced Multiple Sclerosis (MS) who needs help for all personal care lives in a sheltered accommodation complex. Her physical and cognitive functioning deteriorates significantly and a nursing home placement is suggested but she does not want to move. Concerned and involved others think she should move for her own safety. She is assessed by a Clinical Neuropsychologist to have executive functioning difficulties in keeping with MS; difficulties generating options, weighing up the pros and cons of various options and evidencing logical thought in decision making. The Clinical Neuropsychologist and the Rehabilitation Medicine Consultant conclude she does not have the capacity to make the decision about her requirements for support and an appropriate living situation. The patient has never seen a Psychiatrist and has no mental health problems. However, the GP refers to Psychiatry for assessment of her capacity. As a result of the current Guardianship system, assessment is delayed waiting for the opinion of a Psychiatrist who has no involvement with the patient and may or may not have experience of the cognitive difficulties associated with MS. In this case there is no reason for the patient to see a Psychiatrist other than for assessment of capacity - she does not have a mental illness, she has a neurological condition affecting her thinking processes. Decisions about her future may be delayed while assessment is waited and are dependent on the judgement of a clinician who does not know her, rather than on the opinion of a team and clinicians with experience in assessing cognitive functioning in MS. This leads the patient and her family to feel frustration at the delays and the involvement of unnecessary professionals. The proposed system of only a Section 22 doctor assessing capacity, may be appropriate for patients with mental health issues however, it is less appropriate for people who do not have a mental illness and have had no contact with mental health services.

The decision about capacity would more sensibly be made by a clinician experienced and qualified in assessing cognitive functioning and mental disorder with consultation with other members of the care team. Best practise in making judgements about capacity is in consultation with a team working with the person. For purposes of preparing report and certification, ideally there should be a requirement for agreement between 2 practitioners. Each of these practitioners should be experienced in assessing cognitive functioning and mental disorder and hold a qualification with training in these areas i.e. Psychiatrist, Neurologist, Rehabilitation Medicine Consultant, Clinical Psychologist, Clinical Neuropsychologist. Where this pertains to


April 2018

17

mental illness then one of these 2 practitioners should be a Section 22 doctor or Section 22 registered clinician.

*****

The Society asks for clarification regarding the different time scales prior to review at Grade 1 versus Grade 2/3.

Do you think our proposals make movement up and down the grades sufficiently straightforward and accessible?

22.

Yes No

Please give reasons for your answer. The Society has no comment to make.

Do you agree with our proposal to amalgamate intervention orders into graded guardianships?

23.

Yes No

*

Please give reasons for your answer. The Society feels this rationale is sound and would fit with clinical experiences. The Society endorses the need to streamline and clarify the process.

Do you agree with the proposal to repeal Access to Funds provisions in favour of graded guardianship?

24.

Yes No

x

Please give reasons for your answer. The Society feels this rationale is sound.

Do you agree with the proposal to repeal the Management of Residents’ Finances scheme?

25.

Yes No


April 2018

18

The Society has no comment to make

If so, do you agree with our approach to amalgamate Management of Residents’ Finances into Graded Guardianship?

26.

Yes No


Chapter 8 - Forum for guardians Do you think that using OPG is the right level of authorisation for simpler guardianship cases at Grade 1?

27.

Yes No

*

Please give reasons for your answer. The Society feels this would simplify and streamline the process. The current system can involve long waits and a complex process which means that interventions which would benefit the adult are delayed and often predicted powers rather than required powers of a Guardian are applied for. Authorisation by the OPG would be an appropriate although the Society believes in order to allow scrutiny by the OPG, the certification of capacity would need to document the process of assessment and the measures that have been taken to facilitate capacity, to ensure that the principles of the Act have been taken into account.

The Society recommends a certificate of incapacity make clear the process of assessment and the evidence for incapacity. This should include opinion of the person being assessed, others consulted, interview conducted, any formal cognitive assessment and the justification for the opinion that the person is incapable. It should document the measures taken to facilitate decision making.

Which of the following options do you think would be the appropriate approach for cases under the AWI legislation?

28. Please tick one:

Office of the Public Guardian considering Grade 1 applications, a sheriff in chambers considering Grade 2 applications on the basis of documents received, then a sheriff conducting a hearing for Grade 3 applications.


April 2018

19

* Office of the Public Guardian considering Grade 1 applications, with a legal member of the Mental Health Tribunal for Scotland considering Grade 2 applications on the basis of the documents received, then a 3 member Mental Health Tribunal hearing Grade 3 applications.

Please give reasons for your answer. On balance, the Society believes the Tribunal system is more appropriate for this process than the Sheriff Court system. The Society feels as the issue of capacity deals with complex information regarding cognitive functioning and its influence on decision making there can be an overlap in the skills required to make judgements based on this with mental health and, therefore, the Mental Health Tribunal (MHT) system and the individuals who support it have the best skills and are best placed to make decisions surrounding this.

However, the Society notes, many applications for Guardianship are not related to mental health matters. The adults with incapacity legislation is not mental health legislation and although there is a good deal of cross over, where patients who are not suffering from mental health problems have their cases reviewed by a MHT there is a risk for misrepresentation of their needs.

The Society would emphasise that the range of individuals subject to a Tribunal hearing under AWIA will be broader than those currently coming before MHTs under the Mental Health (Care and Treatment) Act, and their needs and circumstances may be different. It is essential that the Tribunal be fit for purpose for the full range of individuals who may come under the scope of AWIA. Where incapacity is by reason of mental disorder then a MHT is an appropriate forum. Where incapacity is due to impaired cognition as a result of neurological illness or injury (e.g. brain injury, multiple sclerosis, stroke, learning disability) and no mental illness is apparent, then there is concern decisions will be made in a forum which does not reflect the needs of that clinical population and different panel expertise will be required. If incapacity certificates are only provided by Section 22 doctors for this purpose, the process is mental health focused which is not appropriate for all adults with incapacity. Should others with expertise in assessing cognition and mental health be able to sign certificates at this stage, this would offer some protection in this process. Consideration should also be given to changing the composition of the MHT panel to include expert members from other professions such as Clinical Psychology, Clinical Neuropsychology, Neurology, Rehabilitation Medicine etc.

The Society recommends Grade 2 applications are considered by a legal member of a Mental Health Tribunal and the certificate of incapacity is provided by 2 practitioners experienced in assessing cognitive functioning and mental disorder, who hold qualifications in this area and who are experienced in the impact of the person’s disorder i.e. a Clinical Psychologist, Clinical Neuropsychologist, Psychiatrist, Neurologist, Rehabilitation Medicine Consultant. Where this pertains to neurological disorder or injury, assessment should be by practitioner experts in this area and where


April 2018

20

this pertains to mental illness one of these should be a Section 22 doctor or Section 22 registered clinician.

The Society recommends the 2 clinicians consult on the judgement of capacity. Where there is disagreement that cannot be resolved then this is referred to the Mental Welfare Commission for independent assessment.

The Society recommends further investment in the system in terms of workforce planning and further training for many individuals involved.

Please also give your views on the level of scrutiny suggested for each Grade of guardianship application.

29.

The Society agrees there should be opportunity for higher level of scrutiny at each Grade, as there may be a number of circumstances where disputes arise e.g. family conflict, disagreement between proposed Guardian and person themselves, concerns of professionals.

Grade 2 and 3 Guardianship – Scrutiny and Process

There is a concern that the proposal suggested those who are compliant with a decision are treated differently than those who disagree with a decision. This is the very crux of the Bournewood case, in that the patient was arbitrarily deprived of liberty as he was incapable of making the decision about detention but compliant and therefore process involving due scrutiny of the decision and thus protection of his rights was not followed. Thus in considering the requirements for Grade 2 and Grade 3 Guardianship, the same consideration of evidence and scrutiny of adherence to the principles of the Act, should be applied to those who are compliant and those who are not.

In both application for Grade 2 and Grade 3 Guardianship, there needs to be a very clear process of scrutiny and documentation that the principles of the AWIA have been followed and this should be clearly documented. As previously suggested:

The Society recommends a certificate of incapacity make clear the process of assessment and the evidence for incapacity. This should include opinion of the person being assessed, others consulted, interview conducted, any formal cognitive assessment and the justification for the opinion that the person is incapable. It should document the measures taken to facilitate decision making.

If you have any further comments on the proposals for the forum, please add them here.

30. The Society has no further comment to make.


April 2018

21

Chapter 9 - Supervision and support for guardians Is there a need to change the way guardianships are supervised?

31.

Yes No

*

If your answer is yes, please give your views on our proposal to develop a model of joint working between the OPG, Mental Welfare Commission and local authorities to take forward changes in supervision of Guardianships.

The Society notes where there have been issues relating to risk or concern about Guardians, the advice of the Mental Welfare Commission has been very helpful.

If you consider an alternative approach would be preferable, please comment in full.

32. The Society has no comment to make.

What sort of advice and support should be provided for guardians?

33.

Clinical Psychologists often discuss decisions with their patient’s Guardians and it is clear that many Guardians are not aware of the process or procedures around their duties. Unfortunately, for some, when they become aware of this, they do not wish to be a Guardian. This may be due to documentation but for some it is due to conflicts that they fear may arise with the person they are representing, and may also be caring for.

The Society recommends there is clear written advice on the following: Legal advice re the principles of the Act and navigating the process, such as expectations of being a Guardian, how to facilitate decision making and how to come to joint decisions with the person you represent and where to go for advice.

This could include: a helpline for Guardians (also acknowledging the emotional support required in coping with the demands of being a Guardian), access to professional assistance to facilitate decision making ability and come to a joint decision e.g. from a Clinical Psychologist, Speech and Language Therapist (where communication is the main issue) or Social Worker trained in mediation.

There should also be training available for those working within the Act including professionals, Guardians and Powers of Attorney.


April 2018

22

Do you have views on who might be best placed to provide this support and advice?

34.

Yes No


Do you think there is a need to provide support for attorneys to assist them in carrying out their role?

35.

Yes No

*

If you answered yes, what sort of support do you think would be helpful?

The Society recommends better written guidance, a helpline and access to professional assistance and training.

The Society notes both legal advice and emotional preparation for the role are important factors which need to be considered.

Chapter 10 - Order for cessation of residential placement, short term placement order Do you agree that an order for the cessation of a residential placement or restrictive arrangements is required in the AWI legislation?

36.

Yes No

*

If so, does the proposal cover all the necessary matters?

Re short term placements -

Clinical Psychologists are often involved in situations with patients and their families where an urgent move of accommodation is required due to placement break down which puts a person, and possibly their family or carers, at risk and there is no authority to do so at the moment under adults with incapacity Act.


April 2018

23

The Society feels a procedure for this needs to be considered and the suggestion that a multi-disciplinary decision making meeting is held with involvement of a Mental Health Officer for this is appropriate.

The capacity of the individual must be considered and documentation in the certificate of incapacity must show how the principles of the Act have been adhered to.

Do you agree that there is a need for a short term placement order within the AWI legislation?

37.

Yes No

*

If you agree, does the above approach seem correct or are there alternative steps we should take? The Society has no comment to make.

Do you consider that there remains a need for section 13ZA of the Social Work (Scotland) Act 1968 in light of the proposed changes to the AWI legislation?

38.

Yes No

If you answered yes, should the section remain in its current form or are changes required to, for example restrict its use to the provision of care services with the exception of residential accommodation? Please give reasons for your answers. The Society has no comment to make.

Chapter 11 - Advance directives Should there be clear legislative provision for advance directives in Scotland or should we continue to rely on common law and the principles of the AWI Act to ensure views are taken account of?

39.

Yes No

*



April 2018

24

The Society believes the AWIA should have legislative provision for advance directives. The AWIA is there to protect the rights of people who do not have capacity and therefore people should be able to use this legislative procedure to ensure that their previous wishes are taken into account. How professionals take into account previous and past wishes is an important aspect of putting the AWIA into place and the guidance for clinicians around this is limited. At the moment, the reliance on the principles or the Act and common law, does not give enough direction for people who are applying these principles e.g. the doctors making decisions about treatment and Guardians.

The Society’s experience in other jurisdictions is that advance directives can have an extremely valuable role in empowering individuals, families and professionals. There are also psychological and practical benefits in terms of the clarity they can provide. We believe that advance directives need to be detailed, and that there should be evidence that the person has thought through options and alternative scenarios. We note also that provisions should be put in place for situations where the wishes and preferences of the individual may later change, potentially placing them in apparent conflict with an advance directive made earlier, which they longer have the capacity to withdraw. The suggestion by the Essex Autonomy Project in this situation is to put in place “support mechanisms in order to exercise legal agency, effecting real legal changes in accordance with their reasonably ascertainable will and preferences”, which might include, for example, “withdrawal of an earlier advance refusal of treatment […] where a person’s clearly ascertainable present wishes stand in demonstrable contrast to the advance directive determining the decisions to be made”. Please see -

(https://autonomy.essex.ac.uk/wp-content/uploads/2017/01/EAP-3J-Final-Report-2016.pdf; pp33-34)

If we do make legislative provision for advance directives, is the AWI Act the appropriate place?

40.

Yes No

*

Please give reasons for your answer. The Society feels it is an intuitive fit and will simplify/ streamline processes.

Chapter 12 - Adjustments to authorisation for medical treatment Do you agree that the existing s.47 should be enhanced and integrated into a single form?

41.

Yes No

*


April 2018

25


The Society agrees that Section 47 should include provision for authorising detention. Clinical Psychologists and Clinical Neuropsychologists are often involved with patients who, due to the cognitive consequences of their neurological condition, are not capable of making decisions about self-discharge and try to leave hospital against medical advice. There are no powers under the AWIA and use of the MHA is not fit for purpose.

Do you think that there should be provision to authorise the removal of a person to hospital for the treatment of a physical illness or diagnostic tests?

42.

Yes No

*


The Society believes people who have medical needs but are not capable of making the decision about the best course of action, need legal protection to ensure that their rights are respected and they receive appropriate physical treatment and that interventions are legal. It is appropriate that AWIA legislation includes this.

Do you agree that a 2nd opinion (medical practitioner) should be involved in the authorisation process?

43.

Yes No

*

The Society recommends a second practitioner should be involved to guard against arbitrary deprivation of liberty. This should be the case whether or not there is a family dispute. This should be for diagnostic tests and/or the treatment of physical illness.

If yes, should they only become involved where the family dispute the need for detention?

44.

Yes No

*

Please give reasons for your answer. Please see above comment 43 by the Society. The Society acknowledges, with the best will in the world, family members may not have all the relevant medical


April 2018

26

information or knowledge and, therefore, a second opinion should be required even if they don’t disagree.

Do you agree that there should be a review process every 28 days to ensure that the patient still needs to be detained under the new provisions?

45.

Yes No

*

How many reviews do you think would be reasonable?

The Society proposes there needs to be a review, at least every 28 days. For some patients (e.g. patients with Traumatic Brain Injury, Stroke) then recovery may be rapid and necessity for detention may only be required for a few days/ weeks. The Society suggests there is flexibility in setting the date or review within that 28 day period and where the patient is likely to improve via treatment or natural recovery then the period of review reflects this. The Society believes a review should happen only a small number of times without judicial involvement (with 3 reviews being suggested as reasonable).

Do you think the certificate should provide for an end date which allows an adult to leave the hospital after treatment for a physical illness has ended?

46.

Yes No

*


The Society urges caution is required considering this approach. For many patients of the physical conditions requiring treatment e.g. Traumatic Brain Injury or Stroke, there are difficulties predicting outcome and recovery and therefore date of discharge is often re-negotiated. If a patient is aiming towards a specific end of treatment date and then, due to requirement for further treatment, this is extended, this can be detrimental to the relationship with the hospital staff and can cause psychological distress.

The Society recommends a review date is always stated and if certain conditions are met e.g. treatment has ended, there are no risks with discharge, then the patient be discharged on that date.


April 2018

27

In chapter 6 we have asked if we should give consideration to extending the range of professionals who can carry out capacity assessments for the purpose of guardianship orders. Section 47 currently authorises medical practitioners, dental practitioners, ophthalmic opticians or registered nurses who are primarily responsible for medical treatment of the kind in question to certify that an adult is incapable in relation to a decision about the medical treatment in question. It also provides for regulations to prescribe other individuals who may be authorised to certify an adult incapable under this section. Do you think we should give consideration to extending further the range of professionals who can carry out capacity assessments for the purposes of authorising medical treatment?

47.

Yes No

*

Please give reasons for your answer. The Society has been advised the Scottish Government has already made a commitment to include Psychologists within the professions that can assess capacity and sign off Section 47 certificates for treatment within their own specialism. The Society expresses gratitude that commitment also stated this will be made an addition to the Act before the end of the current Government term. The Society proposes the addition to the Act specifies Clinical Psychologists and Clinical Neuropsychologists as the Psychological professions able to sign Section 47 certificates for treatment within their own specialism.

This addition to legislation will -

Preclude time delays to treatment for patients

Deliver quicker outcomes

Improve the quality of life for patients and their carers.

In practice this would most likely mean:

Where the disorder is neurological this would be a Clinical Neuropsychologist or Clinical Psychologist with experience in Neuropsychology.

Where that disorder is mental illness, this would be a Clinical Psychologist.

Where the disorder is Learning Disabilities this would be a Clinical Psychologist with experience in Learning Disabilities. This would also apply to other Clinical Psychologists working within other specialities also, such as Older Adults and Addictions and so on.

The Society asks the Scottish Government to also consider Clinical Psychologists and Clinical Neuropsychologists as possessing the relevant skills, knowledge and competencies to sign off Section 47 certificates in general (not just those related to Psychological treatment). The Society has presented a lengthy argument regarding Psychologists’ competencies to assess capacity in response to question 13 of this


April 2018

28

consultation so we will not reiterate it here but ask you refer back to question 13 for clarification and explanation of our position.

Chapter 13 – Research Where there is no appropriate guardian or nearest relative, should we move to a position where two doctors (perhaps the adult with incapacity’s own GP and another doctor, at least one of whom must be independent of the trial) may authorise their participation, still only on the proviso that involvement in the trial stops immediately should the adult with incapacity show any sign of unwillingness or distress?

48.

Yes No

*


The current legislation guiding participation in research for adults who lack capacity is restrictive and excludes those who would have a valuable contribution to make. It also restricts research in populations where adults may lack capacity. Supervisors of the doctorate research of Trainee Clinical Psychologists actively discourage research on patients with severe cognitive deficits due to the likelihood of incapacity to consent. This is because of the extended process of ethical approval and the limited time in which the Trainee must complete their doctorate. Research including those with incapacity or significant cognitive impairment has declined and this is detrimental to scientific knowledge and to the treatment options and understanding of disorders where patients have severe cognitive deficits.

When drafting their power of attorney should individuals be encouraged to articulate whether they would wish to be involved in health research?

49.

Yes No

*


The Society believes in this way active POAs would be aware of past wishes.

Should there be provision for participation in emergency research where appropriate (e.g. if the adult with incapacity has suffered from a stroke and there is a trial running which would be likely to lead to a better outcome for the patient than standard care)?

50.

Yes No

*


April 2018

29


The Society agrees this is essential, as otherwise study samples are unrepresentative of the clinical populations for which treatment is intended to be used. However, as with all trials, it should not be assumed that participation will necessarily lead to any direct benefit for the individual.

The Society feels such participation should only take place where the research demonstrates specific benefit of including patients with incapacity (e.g. numbers required for the study and study outcome that would clearly benefit either the adult themselves or those with the same condition) and that the research is conducted by fully qualified professionals.

Should authorisation be broadened to allow studies to include both adults with incapacity and adults with capacity in certain circumstances? E.g. an adult with incapacity who has an existing condition not related to their incapacity may respond differently to different types of care or treatments to an adult with capacity.

51.

Yes No

*


The Society believes this would allow study of different responses of those with incapacity and inform future treatment of either that individual or others with the same condition.

Should clinical trials of non-medicinal products be approached in the same way as clinical trials of medicinal products?

52.

Yes No

*


There are some non-medicinal interventions known to be effective in populations without incapacity and further study on patients with incapacity may be beneficial with very few concerns about potential harm. E.g. the study of the effectiveness of mindfulness techniques or Cognitive Behavioural Therapy which are known to be beneficial in many patient groups, and may be adapted for cognitive impairment. However, proving effectiveness of this is difficult due to onerous ethical approval. If broadening the range of study types included, consideration should be given to the possibility that an individual may lack capacity to consent to some kinds of research


April 2018

30

studies (e.g. complex trials), while retaining the capacity to consent to others (e.g. surveys or interviews).

The Society believes for non-medicinal products where trials in other populations have shown good results, there should be a less rigorous procedure in approving studies to test the intervention in populations who do not have capacity. Where trials for medical products have either not been tested or have shown potentially harmful side effects in other populations, there should be a very rigorous process before including people who are not capable of consent.

Should there be a second committee in Scotland who are able to share the workload and allow for appeals to be heard respectively by the other committee?

53.

Yes No

*


The Society feels this would be a welcome development and facilitate more research with adults with incapacity.

Should part 5 of the Act be made less restrictive?

54.

Yes No

*


The Society believes in such circumstances where trials in other populations have shown no significant adverse side effects and have shown benefits associated directly with the trials conducted.

Miscellaneous Matters Are there any other matters within the Adults with Incapacity legislation that you feel would benefit from review or change?

55.

Yes No

*

Please give reasons for any suggestions. The use of the term ‘mental disorder’ within the Act.


April 2018

31

The Society proposes the term ‘mental disorder’ is inclusive in definition for many people who may have decision making affected including those who have a neurological condition or injury which has affected their thinking processes and possibly capacity. However, it does infer ‘mental illness’ and this has been reflected within the proposals of this report, with an emphasis on Psychiatric assessment and Mental Health Tribunals. Many patients with neurological conditions e.g. Traumatic Brain Injury, Stroke or Multiple Sclerosis have never had any contact with Psychiatry or mental health services would not identify with the term ‘mental disorder’. Hence, should they be subject to the process under the AWIA they may find this an uncomfortable label. People with learning disability are also highly unlikely to identify with the term mental disorder. Learning disability is caused by developmental disorder of brain functioning and is therefore a neurological disorder. ‘Neurological disorder’ would be a more acceptable term for those with developmental or acquired brain functioning impairment. The Society notes the wording used in capacity Acts for England and Wales, and for Ireland is ‘disturbance in the mind or brain’ which allows for inclusion of both psychiatric and neurological reasons for decision making being affected and avoids the implications of the term ‘mental disorder’.

The Society recommends the definition of the term mental disorder is clarified within the Act e.g. ‘mental disorder affecting cognitive and/or emotional processes including mental illness or neurological disorder’ or ‘mental disorder including mental illness or neurological disorder’. Or, that a substitute for the term ‘mental disorder’ is considered, such as ‘impairment or disturbance in the functioning of the mind or brain’.

*****

Incapacity certificate – Documenting the process of assessment of capacity

Many of the decisions which trigger assessment of capacity are life changing for the individual. Whether or not Guardianship proceeds rests on the assessment of two individuals (as the Act currently stands). The Society believes in order to protect the rights of the individual, there needs to be record of how the decision about incapacity was reached. This record needs to be available to those who are considering evidence in Court (or other forum) about whether Guardianship needs to proceed. Should the changes suggested for Grade 1 Guardianship reduce legal scrutiny, this record becomes even more important. This would also allow scrutiny of process where Guardianship was challenged.

The Society recommends the certificate of incapacity make clear the process of assessment and the evidence for incapacity. This should include opinion of the person being assessed, others consulted, interview conducted, any formal cognitive assessment and the justification for the opinion that the person is incapable. It should document the measures taken to facilitate decision making.

***** Of the legislation the Society is aware of around the world (USA, England &Wales, N Ireland, Ireland, Australia), Scotland is the only legislative process that doesn't recognise Clinical Psychologists as able to make clinical judgements on capacity. It is the only legislation where this is the sole proviso of the medical doctor which the Society believes to not be in the best interests of patients and clients affected by this law.


April 2018

32

References

Arscott, K (1997) Assessing the capacity of people with learning disabilities to make decisions about treatment. Tizard Learning Disability Review, 2, 17-28.

Arscott K, Dagnan, D and Stenfert Krose B (1999) Assessing the ability of people with a learning disability to give informed consent to treatment. Psychological Medicine, 29, 1367-75.

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. (2005) American Bar Association Commission on Law and Aging and American Psychological Association. Washington, D.C.

Assessment of Capacity in Adults. Interim Guidance for Psychologists (2006) The Professional Practice Board of the British Psychological Society. The British Psychological Society. Leicester.

Audit Tool for Mental Capacity Assessments. (2010). The Professional Practice Board of the British Psychological Society. The British Psychological Society. Leicester.

Bournewood Briefing Sheet. (2006) Department of Health. Gateway Reference 6794.

Cea CD and Fisher CB (2003) Health care decision-making by adults with mental retardation. Mental Retardation, 41, 78-87.

Cicerone KD, Langenbahn DM, Braden C, Malec JF, Kalmar K, Fraas M, Felicetti T, Laatsch L, Harley JP, Bergquist T, Azulay J, Cantor J, Ashman T. (2011) Evidence-based cognitive rehabilitation: updated review of the literature from 2003 through 2008. Archives of Physical Medicine and Rehabilitation, Volume 92, Issue 4, 519 – 530.

Demakis (2012) Introduction to basic issues in civil capacities in Civil Capacities. In Clinical Neuropsychology. Research findings and practical applications. Demakis (Ed) Oxford University Press. Oxford.

Dimond (2016) Legal Aspects of Mental Capacity. A Practical Guide for Health and Social Care Professionals (2nd Ed). Wiley Blackwell. Chichester.

Ferguson L and Murphy GH (2014) The effects of training on the ability of adults with an intellectual disability to give informed consent to medication. Journal of Intellectual Disability Research 58, 864-873.

Moberg and Shah (2012) Ethical Issues in Capacity and Competency Assessments in Civil Capacities. In Clinical Neuropsychology. Research findings and practical applications. Demakis (Ed). Oxford University Press. Oxford.

Murphy, G and Clare ICH (2003) Adults capacity to make legal decisions. In Handbook of Psychology in Legal Contexts (2nd ed.) Bull and Carson (Eds). Wiley and sons, Chichester.


April 2018

33

Owen, G.S., Freyenhagen, F., Martin, W. & David, A.S. (2015) Clinical assessment of decision-making capacity in acquired brain injury with personality change. Neuropsychological Rehabilitation, 27:1, 133-148.

Wong JG, Clare IC, Holland AJ, Watson PC and Gunn M (2000) The capacity of people with a ‘mental disability’ to make a health care decision. Psychological Medicine, 30, 295-306.

End.

British Psychological Society response to the Scottish ... · Adults with Incapacity Reform British...

Documents

Transcript of British Psychological Society response to the Scottish ... · Adults with Incapacity Reform British...