Guidance on Mental Capacity in other parts of the UK

Scotland and the Adults with Incapacity Act (2000)

The Mental Capacity Act does not apply in Scotland and instead patients who are deemed as lacking capacity are safeguarded and managed under The Adults With Incapacity (Scotland) Act 2000. There are many broad principles which both acts share and like the Mental Capacity Act, and when a health care professional is making a decision or taking action on behalf of a person who lacks capacity, the Adults with Incapacity Act requires that the intervention:

  1. benefits the patient
  2. takes account of the patient’s previously held wishes (as far as they can be ascertained.
  3. takes account of the views of the patient’s relevant others (as far as it is practicable to do so)
  4. restricts the patient’s freedom as little as possible
  5. encourages the patient to exercise any residual capacity they may have.

The Adults with Incapacity Act applies to those aged 16 or over in Scotland. The Act requires that a Certificate of Incapacity is issued. This certificate must detail:

  1. that the doctor has examined the patient and is of the opinion that he or she lacks capacity for this particular matter
  2. the nature of the medical treatment in question
  3. the likely duration of the adult’s incapacity 

  4. the period for which the specified treatment is authorized.

A certificate may apply to a single procedure such as an operation or may be attached to a treatment plan and encompass multiple pre-defined interventions. Where new interventions outside the scope of the original treatment plan are required such as a new operation, a separate certificate will be required.

The Act allows for the appointment of a proxy for the incapacitated patient, who can consent to or refuse treatment within the limits of the Act. Where there is a difference of opinion between the treating health care professional and a proxy, a second opinion from a doctor appointed by the Mental Welfare Commission should be sought. Should this not resolve the matter, an appeal may be made to the Court of Session. While this appeal is ongoing, the patient can only receive emergency treatment. The Court can instruct that the patient should receive the treatment in question, but cannot instruct a particular doctor to provide treatment contrary to their professional judgement or conscience.

The following links give an in depth review of Capacity Law in Scotland and its application in practice:

 

Northern Ireland

At present there is no equivalent to the MCA or Adults with Incapacity Act in Northern Ireland. The Bamford review recently concluded a four-year review of current legislation and has recommended the reform of mental health legislation and the introduction of formal capacity legislation to Northern Ireland. A Northern Irish version of the MCA is currently under committee scrutiny. At present however, patients without capacity must be treated under common law which requires decisions to be made in a person’s best interests.

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