British Psychological Society
Incorporated by Royal Charter
- Registered Charity No. 229642
CONSULTATION ON DRAFT MENTAL INCAPACITY BILL
COMMENTS FROM THE BPS DIVISION OF CLINICAL PSYCHOLOGY (SCOTLAND)
The BPS Division of Clinical Psychology
(Scotland) has been invited to provide a response to the consultation
on the above Bill, with particular reference to the lessons that
can be learned so far from the implementation of the Adults With
Incapacity (Scotland) Act 2000 [AWI Act].
Although there are a number of teething
problems with the AWI Act it has been welcomed as a significant
improvement on what went on before and has clearly enhanced the
rights of vulnerable adults and their carers. It is encouraging
that similar safeguards are planned for individuals in England
As no formal study of the implications
of AWI Act for psychologists has been undertaken, and current
general research projects into the Act have not yet reported,
this response is somewhat anecdotal, but reflects the experience
of a number of senior practitioners in clinical practice
2. Context - The Adults With Incapacity (Scotland)
The AWI Act was the first piece of legislation
introduced by the Scottish parliament.
There is a perception that, with hindsight,
the Act was introduced before appropriate systems were fully in
Some parts of the Act were introduced
before the Codes of Practice
The planned dates for implementation
of the Act were delayed
Although there has been a huge investment
in awareness training, the experience of this has often been that
participants were left with a lot of unanswered questions about
the specifics of how the AWI Act should be implemented in practice.
AWI consists of 6 parts
Part 1 General principles &
Part 2 Continuing powers of attorney
(commenced 2nd April 2001)
Part 3 Accounts and funds (commenced
2nd April 2001)
Part 4 Management of residents' finances (originally
due April 2002, commenced 2nd June 2003)
Part 5 Medical treatment and research
(originally due Autumn 2001, commenced 1st July 2002)
Part 6 Intervention orders &
Guardianship orders (commenced 1st April 2002)
Whilst clinical psychologists may become
involved in providing assessment or advice relating to all aspects
of the AWI Act, the greatest involvement has related to Parts
5 and 6.
3. Experiences in Implementation of the Adults
With Incapacity (Scotland) Act 2000
The general principles of AWI are emphasised
strongly in the legislation.
All decisions made on behalf of an adult
with impaired capacity must:
benefit the adult
take account of the adult's wishes,
if these can be ascertained
take account of the views of relevant
others, as far as it is reasonable and practicable to do so
restrict the adult's freedom as little
as possible while still achieving the desired benefit
encourage the adult to use existing
skills or develop new skills
These principles have become well established
with health and social work professionals and the emphasis on
them is viewed very positively.
There would appear to be a significant
benefit in the principles of the Act being prominent in this fashion.
There is a great deal of inconsistency
across the country in how the AWI Act is being implemented in
Some clinical psychologists are now
regularly being asked to provide detailed assessments of capacity
by doctors in relation to medical treatment and by social workers
in relation to potential applications for Guardianship or Intervention
orders. Clinical psychologists in other areas working with the
same client population have had no such requests.
In some areas requests for assessment
appear to being made whenever a Certificate of Incapacity is being
considered (in some cases even when it would appear abundantly
clear that the individual is incapable). Other areas refer only
when complex issues are involved.
It is clear in the Code of Practice
to Part 5 of the AWI Act that "medical treatment" is
defined as including "any procedure or treatment designed
to safeguard or promote physical or mental health" and that
this includes psychological treatment, however
There is confusion about the level of
psychological intervention (particularly indirectly through carers)
which requires certification under the Act.
Due to this confusion there is little
evidence of psychologists proactively seeking certification by
medical practitioners for psychological interventions (and in
some cases where such certification has been sought this has immediately
been dealt with by the G.P. by them referring back to that clinical
psychologist for an assessment of capacity!).
The level of familiarity with the detailed
requirements of the Act is in need of enhancement across a range
of healthcare staff.
Guardianship and Intervention orders
are being increasingly used, although there is still a lot of
learning to be done as to how they can be used most effectively
to promote the rights and safety of individuals. There is also
some evidence of the "threat"
of Guardianship being used to promote co-operation with intransigent
inconsistency across local authority
areas in the use of these measures
Part 5 of the AWI Act is generally recognised
as requiring further revision as evidenced by the recent consultation
exercise on possible revisions (responses currently being analysed).
Of greatest interest to psychologists in this consultation were
questions relating to
The principle of proportionality which
would allow different levels of assessment to be applied which
would reflect the implications of treatment and interventions
of a greater or lesser gravity. We would welcome the introduction
of a variable assessment procedure which would reflect the scope
and degree of the intervention or treatment proposed. This could
mean that referrals to clinical psychologists would focus on cases
where there was borderline capacity, conflict, other complex or
complicating issues, or where a full multi-disciplinary assessment
was in the person's (or public) interest.
Whether it would be possible for someone
other than a registered medical practitioner to sign a certificate
of incapacity. We would welcome this provided appropriate safeguards
were in place in line with the variable assessment procedure above.
Key Issues for Clinical Psychologists arising
from the Adults With Incapacity (Scotland) Act
The most significant issue is how capacity
is being assessed.
The onus of assessment of capacity falls
on registered medical practitioners, many of whom have very little
contact with some of the groups of vulnerable adults for whom
incapacity is an issue.
There is even evidence that specialist
medical practitioners can be inconsistent in their assessment
of capacity (e.g. Shah & Mukherjee, 2003), although there
is no available research on this in the context of the AWI Act.
Practitioners who are unfamiliar with
the psychological complexities of these client groups may be unfamiliar
with the implications of acquiesence, suggestibility, emotional
maturity, cognitive bias, cognitive schema and communication difficulties
in relation to such assessment.
The BMA in their guidance on ethical
and legal issues in Scotland (see Appendix 1) specifically highlight
the need for referral for psychological assessment in complex
cases. This is adapted from the Code of Practice for Part 5 of
the Act (which in turn is derived from a paper by Clark,2000),
but with the advice that this be carried out specifically by a
psychologist being added to the statement in the Codes of Practice.
There needs to be clarity on when a
psychological opinion is sought.
Clinical psychologists are a relatively
scarce resource, often carrying long waiting lists. For example
there are less than 40 qualified psychologists working with people
with learning disabilities in Scotland. To allow a timeous assessment
service it will be necessary to focus this on the individuals
where such specialist assessment is most appropriate.
As indicated above it is suggested that
it would be appropriate to focus on cases where there was borderline
capacity, conflict, other complex or complicating issues, or where
a full multi-disciplinary assessment was in the person's (or public)
Although psychologists are well placed
to use their clinical skills in the assessment of capacity, it
has become clear that there is a need to develop clearer standards
to ensure consistency of approach.
As each assessment of capacity has to
be individualised and decision-specific it is unlikely that any
single assessment package will be appropriate to assess capacity.
However, agreement on the introduction
(or development) of 'standard' assessment measures is likely to
be beneficial (e.g. Arscott et al.,1999; Grisso & Appelbaum,
1998) in so far as these can provide a consistent structure to
assist clinical decision making.
These could be enhanced by the development
of assessments which are specific to particular types of decision,
such as those developed by Suto et al., 2002, in relation to financial
decision making and Wong et al., 2000, which focussed on capacity
to decide about having a blood test.
The creative, individualised approach
to assessment of capacity for specific decision making would continue
to be available as the most specialised approach to assessment.
The provision of structured algorithms/assessment
models for other professionals, such as G.P.'s could be of benefit
in guiding them through the assessment of capacity with individuals
where it is not an obvious decision, and could identify cases
where more specialised assessment was required.
The AWI Act is very clear in putting
an emphasis on the assessor to ensure that they make every effort
to enhance communication with the individual
This requires greater use of Speech
and Language Therapists, and others who may enhance communication
with individuals to ensure a person centred approach.
There is a need to produce information
about medical (and social welfare and financial) interventions
in ways which are accessible to people with communication difficulties.
Despite one of the key principles of
the AWI Act being that of encouraging the adult to use existing
skills or develop new skills there is currently little
evidence of any work on the enhancement of capacity being reported.
Education strategies will clearly be able to enhance the capacity
of some individuals (for example, those who have recently moved
out of institutions
Key Differences between the Draft Mental Incapacity
Bill and the Adults With Incapacity
(Scotland) Act 2000
It is encouraging that most features
of the AWI Act and the Bill are very similar apart from labels
and level of emphasis, however,
The requirement that a certificate of
incapacity be provided in relation to any active intervention
under the Scottish Act is probably the most significant difference.
Although there have been some practical
problems in the provision of certificates of incapacity this does
ensure that there is formal record in a standard format of such
a decision having been taken.
This has developed from the original
proposals regarding certification to a position now where this
certification can specify a range of elements in the treatment
plan for an individual and can include fundamental healthcare
The absence of such a certification
in the Draft Mental Incapacity Bill does lead to concern about
the process of decision making, especially where the standard
of assessment is that the person "reasonably believes"
that the individual lacks capacity.
in this case the definition of "reasonably
believes" is absolutely crucial to the equitable application
of the powers under the general authority.
There is a significant risk that the
quality of decision making will be a reflection of the ability
of the assessor (who in many cases will be unfamiliar with the
issues highlighted in 4.1)c) above, rather than of the capacity
of the individual concerned.
Pragmatically, this may be of less significance
in relation to low level interventions (and there are probably
advantages in not requiring certification for these), but as interventions
become more intrusive the need for standardised formal recording
There is potentially a risk of individuals
with "overpaternalistic" attitudes being very ready
to take decisions on behalf of a person on the assumption that
it must be in their best interests.
There appears to be a greater emphasis
on the importance of enhancing communication in the AWI. This
is crucial in protecting the rights of individuals who otherwise
erroneously might be deemed incapable of decision making, when
the fact is that the assessor has failed to communicate effectively.
The AWI has not led to the development
of a specialist Court system as is proposed in the Bill. It is
anticipated that this will be watched with great interest. It
does appear however that the Scottish system is potentially more
accessible as the Code of Practice for Part 5 states that "Anyone
having an interest may apply to the Court of Session for a determination
as to whether treatment should be given or not", whereas
the Draft Bill appears to be more restrictive in defining who
It is unclear how disputes in relation
to decisions about medical treatment are to be resolved, whereas
this is detailed very clearly within the AWI Act and associated
codes. However, the role of medical visitor is also different,
and again we feel this will be watched with interest as to the
precise nature of the role.
The AWI has a range of specific requirements
in relation to research with adults who are incapable of consenting.
It is not clear how this will be dealt with in relation to powers
under the Bill.
6. Lessons to be learned from the Adults With
Incapacity (Scotland) Act 2000
The pace of implementation is crucial.
It is important that all of the necessary
documentation and training is in place before the Bill is implemented
(and the experience of Scotland is that this will take much longer
There is likely to be a requirement
for a huge investment in training.
It is important that in addition to
training in the general operation of the Bill there is a national
programme of training in the specific application of the elements
of the Bill.
If this is not done it is likely that
a wide range of local interpretations will develop which will
inevitably lead to inequity.
There is a significant need for clarity
on the different levels of assessment which will be applied under
This should include the development
of a range of assessment materials which will be available to
decision makers to ensure consistency in applying the tests of
capacity specified in the act. It is clear from the Scottish experience
that these 'high level' principles of assessment are not enough
in themselves when it comes to making complex decisions about
Many clinicians have highlighted a desire
for clearer guidance on how to provide assessments.
There should also be a clear process
of assessment of capacity which highlights the situations in which
specialist and/or multi-disciplinary assessment is required to
ensure that the rights of an individual are protected.
The models of assessment adopted need
to be reliable, valid, flexible, reasonable, practicable, defensible,
principled and the minimum intervention required to make the decision.
Pragmatically, busy clinicians will
benefit from having "off-the-shelf" tools which can
be used to aid clinical judgement.
It is important to recognise that this
is a complex area and that as practice develops so will interpretation
of how the Bill is to be best applied.
The more details of practical interventions
that are highlighted in the codes of practice the better.
7. Additional comments on the Draft Mental Incapacity
The language used in the Bill is extremely
important, and how it is interpreted will have a very significant
impact on the implementation of the Bill.
It is therefore crucially important
that there is clear guidance on what is meant by "Reasonably
believes" as this is the foundation for much of the decision
making involved in the Bill.
The other very significant term is that
of "best interests", which is defined in the Bill and
described elsewhere as being a checklist. It is our belief that
this would be further enhanced by incorporating the BMA guidance
on 'best interest' (see appendix 2) with the addition of a statement
indicating the need to consider the psychological well-being of
The Bill specifies a role for Medical
Visitors and General Visitors, both of which are welcomed. However
consideration should be given to introducing other specialist
visitors, specifically Clinical Psychologists (who are best placed
to provide a specialised assessment of capacity in relation to
both medical, social and many communication issues) and Speech
and Language Therapists (who are best placed to provide specialised
assessments in particular areas of communication). Both of these
categories of professional visitors could operate in the same
fashion as a Medical Visitor within their respective areas of
In considering decision specific capacity
it is important to consider the level of capacity which is required
for different decisions and whether this is higher than that for
the general population (see Murphy & Clare, 2003).
The effectiveness of the Bill in achieving
its aims will to some extent depend on how far professionals and
carers who are involved in the care of vulnerable people are prepared
to identify situations where the general authority is being used
inappropriately. It is important in situations where significant
lifestyle and medical decisions are being taken on behalf of another
person that there is clear monitoring of this in place. This should
not only be in terms of abuse and exploitation, but also in relation
to overpaternalistic and overly risk-averse attitudes as this
can also be damaging to the individual
There is a clear need for a substantial
research programme to accompany the development of this Bill to
ensure that it achieves its aims.
Consultant Clinical Psychologist
Mark C. Ramm
BPS Representative on the Scottish Mental
Health Legislation Reference Group
Chair of the BPS Division of Clinical
Enquiries about this document should
be addressed to:
Mark C. Ramm
Director of Clinical Forensic Psychology
The Orchard Clinic Forensic Psychiatry
Royal Edinburgh Hospital
Tel: 0131 537 5854
Fax: 0131 537 5857
BMA website -
Medical treatment for adults with
incapacity: guidance on ethical & medic-legal issues in Scotland
2nd edition October
"Assessment of capacity
Capacity is assessed in relation to
a particular decision that needs to be made. An assessment of
capacity is not based on the test "would a rational person
decide as this person has decided?" Rather the thought processes
behind the decision are relevant to the question of capacity
cases where patients have borderline or fluctuating capacity,
it can be difficult to assess whether the individual can make
valid decisions on very serious issues. The BMA has published
detailed practical advice about assessing capacity. In many cases
there will, of course, be no doubt about a person's capacity.
Where there is doubt, a comprehensive psychological investigation
may be needed, which would seek to determine whether the
is capable of making a choice;
understands the nature of what is
understands why a choice is needed;
has memory abilities that allow the
retention of information;
is aware of any alternatives;
has knowledge of the risks and benefits
is aware of the decision's personal
relevance to him or herself;
is aware of his or her right to refuse,
as well as the consequences of refusal;
is aware of how to refuse;
is capable of communicating his or
has ever expressed wishes relevant
to the issue when greater capacity existed; and
is expressing views consistent with
previously preferred moral, cultural, family, and experiential
A patient's abilities can fluctuate
because of a range of factors, including medical condition, medication,
time of day or mood. Doctors have a general ethical duty to enhance
capacity when it is possible to do so, and should seek to engage
patients in decision making when they are best able to participate.
Doctors constantly assess whether patients
have the capacity to make the decision they are faced with. Mental
abilities can be influenced by both medical and psychiatric conditions.
Any doctor should, however, be able to take a psychiatric history
and to conduct a basic mental state examination in order to define
straightforward abnormalities irrespective of their cause. Many
people can be assessed by their own GP. Indeed a close, long-term
acquaintance with the person being assessed may be an asset, particularly
if the person is more relaxed with a familiar doctor. Where
the person's capacity is borderline, however, or the treating
doctor does not feel able to make an objective assessment, specialist
advice should be sought."
[bold type for emphasis - not in original].
BMA Consent Tool Kit Second edition
Card 8 - Determining "best interests"
A number of factors should be addressed
The patient's own wishes and values
(where these can be ascertained), including any advance statement
Clinical judgement about the effectiveness
of the proposed treatment, particularly in relation to other options;
Where there is more than one option,
which option is least restrictive of the patient's future choices;
The likelihood and extent of any degree
of improvement in the patient's condition if treatment is provided;
The views of the parents, if the patient
is a child;
The views of people close to the patient,
especially close relatives, partners, carers or proxy decision
makers about what the patient is likely to see as beneficial;
Any knowledge of the patient's religious,
cultural and other non-medical views that might have an impact
on the patient's wishes
We would suggest that a statement relating to the
impact of the proposed intervention on the psychological well-being
of the individual should be added to this list.
Arscott, K., Dagnan, D. & Stenfert Kroese, B.
(1999), "Assessing the ability of people with learning disability
to give informed consent to treatment", Psychological Medicine,
BMA website - medical treatment for
adults with incapacity: guidance on ethical & medic-legal
issues in Scotland 2nd edition October 2002 http://www.bma.org.uk/ap.nsf/Content/adults+with+incapacity+-+scotland
BMA website - BMA Consent Tool Kit Second
edition February 2003 Card 8 - Determining "best interests"
Clark, A. (2001), "Consent issues when working
with people who have a learning disability",Working with
People who have a learning disability, 18, 8-14.
Grisso,T. & Appelbaum,P.S. (1998), "Assessing
Competence To Consent To Treatment". New York: Oxford University
Murphy,G. & Clare,I.C.H. (2003), "Adults
capacity to make legal decisions", in Bull,R. & Carson,D.,
Handbook of Psychology in Legal Contexts
(2nd edition), Wiley.
Suto,W.M.I., Clare,I.C.H. & Holland,A.J. (2002),
"Substitute financial decision-making in England and Wales:
a study of the Court of Protection", Journal of Social Welfare
and Family Law,24,37-54
Shah,A. & Mukherjee,S. (2003), "Ascertaining
Capacity to Consent: A survey of approaches used by psychiatrists",
Medicine, Science and the Law,43,231-235
Wong,J.G., Clare,I.C.H., Holland,A.J.,
Watson,P.C. & Gunn,M. (2000), "The capacity of people
with a 'mental disability' to make a health care decision",