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Mental Capacity and Consent

Post date: 22/08/2017 | Time to read article: 5 mins

The information within this article was correct at the time of publishing. Last updated 15/08/2019

Obtaining appropriate consent to dental treatment is a fundamental role of dental practitioners and is not unusual for Dental Protection's 24 hour dento-legal advice line to receive calls from members who want to clarify a particular issue that has arisen.

As dental professionals are aware, obtaining appropriate consent depends on providing patients with sufficient knowledge and information to allow them to make a decision. Additionally, the decision must be made without the patient being placed under any duress and the patient must have the capacity to consent to treatment.

But how does this work in practice for adults who do not have capacity to consent to treatment?

Adults are presumed to have capacity to consent to medical or dental treatment unless it can be proved otherwise. Indeed, if a practitioner has any doubts regarding an individual patient then it would be sensible to seek specific advice.

The Adults with Incapacity (Scotland) Act 2000 (‘the Act') is the overarching legislation in Scotland which deals with the issue of capacity to consent and was one of the earliest pieces of legislation to be passed by the Scottish Parliament. The Act provides an overarching framework which is intended to safeguard the welfare and finances of adults who lack capacity to consent due to a mental disorder or inability to communicate. The issues dealt with in the act cover not only healthcare issues which include consent to medical and dental treatment, but also welfare issues in relation to financial and property matters.

As regards consent to medical and dental treatment for adults who do not have capacity to consent, the relevant part of the Act is Part 5 which came into force in July 2002. For the purposes of the Act, an adult is considered to be an individual aged 16 and over and the Act allows other people to make decisions on behalf of such adults, subject to various safeguards. The main groups of individuals who are intended to benefit include dementia sufferers, persons with learning disabilities, acquired brain injuries or severe chronic mental illness and people with a severe sensory impairment.

Under the Act, a welfare attorney can be appointed by an individual, whilst that individual still has capacity, to act as their welfare attorney in the event that capacity is lost at some point in future. Additionally, following an application to Court, a guardian can be appointed with healthcare decision making powers. Where either a welfare attorney or a guardian have been appointed, any treating medical or dental practitioner must seek the consent of that welfare attorney or guardian where it is practical and reasonable to do so. Where the adult has no such proxy in place, a doctor is authorised to provide medical treatment, subject to certain safeguards and exceptions.

The law in Scotland generally presumes that adults are capable of making decisions for themselves and it is important to recognise that simply because an individual has an illness such as dementia, this does not necessarily mean that the person cannot make decisions for him or herself. For the purposes of the act 'incapable' means incapable of:

  • Acting on decisions; or
  • Making decisions; or
  • Communication decisions; or
  • Understanding decisions; or
  • Retaining the memory of decisions.

The aim of the Act is to protect those persons who lack capacity but also to support the involvement in making decisions as far as an individual is able to do so.

The act provides principals which must be followed, as follows:

  1. Any action or decision taken must benefit the person;
  2. Any action or decision taken should be the minimum necessary to achieve the purpose;
  3. Account must be taken of the present and past wishes and the feelings of the individual concerned as far as this may be ascertained;
  4. Account must be taken of the views of others with an interest in the person's welfare, such as primary carer, nearest relative, named person, attorney or guardian.

There are various bodies in Scotland involved in the regulation and supervision of those individuals who are authorised to make decisions on behalf of a person with incapacity.

Consent to Medical or Dental Treatment

The relevant section of the Act for consent to medical (including dental) treatment is Part 5. Persons who have been formally appointed as a welfare guardian or attorney under the Act can consent to treatment for the incapable adult if they have been granted this power. Additionally, in some cases, even where there is a guardian or attorney, persons identified in Part 5 of the Act, which include the medical practitioner primarily responsible for the treatment of the adult, a dental practitioner, ophthalmic optician, registered nurse and other individuals who fall within such description of persons as may be prescribed by the Scottish ministers, can sign a Section 47 certificate in relation to treatment.

However, caution is advised as matters have moved on somewhat since the Act was amended in 2005 to allow healthcare practitioners other than doctors, described above, to sign section 47 certificates. The Adults with Incapacity (Requirements for Signing Medical Treatment Certificates) (Scotland) Regulations 2007 clarify that only persons who have undergone a specific training course can now sign section 47 certificates.

The appropriately trained medical/dental practitioner concerned must decide if the patient is able to understand the specific treatment being suggested and make an informed decision. It should be born in mind that an individual might be able to consent to some treatment but not to others and if practitioners are in any doubt then they may wish to seek advice on the specific situation.

Section 47

Where a patient isn't able to make a decision for themselves and no guardian or attorney has been appointed then an appropriately trained doctor or dentist can use Section 47 of the Act which allows them to sign a certificate which states that the person cannot make a decision and details the proposed treatment. The healthcare practitioner then retains the certificate and carries out the necessary treatment. Where an individual needs more complicated care or ongoing medical treatment then the trained doctor/dentist can use a treatment plan under the Act which sets out the detailed care which is required. In that situation, there is no need for a section 47 certificate to be signed every time treatment is needed.

Section 47 certificates can be used to authorise most medical procedures and treatment but serious and irreversible treatment would be regarded as being so serious that they may need to be approved by a court (the Court of Session) or an independent clinician nominated by the Mental Welfare Commission can become involved and nominate an independent practitioner to make a decision. If disagreement remains then the attorney or guardian can ask a court to decide. An individual's family would be required to seek immediate legal advice about a court application. In the meantime, only necessary care can be provided to protect life and prevent serious deterioration of a patient's condition.

Section 47 certificate can be completed by the dentist primarily responsible for the clinical care of the incapable adult when that dentist has assessed that the treatment or proposed investigation would be of benefit to the patient and the patient is incapable in relation to the decision about that intervention. A proviso is that the dentist concerned must have completed an approved training course before being legally entitled to sign such certificate. Certificates must be in the prescribed form and must specify how long the authority to treat is valid. The time period concerned is the period which the issuing practitioner considers appropriate to the particular treatment and the patient concerned. These certificates should not normally be for more than one year but can be for up to three years in certain circumstances. Three year certificates would perhaps be appropriate where a patient has a condition such as severe dementia, severe learning disability or severe neurological disorder and where the situation is unlikely to resolve and there is no possibility of recovery.

The Code of Practice to the Act also discusses the use of treatment plans for multiple healthcare interventions and contains an example treatment plan as an annex. Such treatment plans could outline any interventions which may be foreseen over a specified period of time and can be attached to the certificate of incapacity and held within the clinical records.

As indicated above, the 2007 regulations require health professionals signing Section 47 certificates to have undergone an approved training course. Dentists should consider in the first instance whether the patient can actually consent on their own behalf to the treatment proposed. However, if the view is that the patient does not have capacity to consent then dentists should be aware that only clinicians who have undertaken an approved training course can sign a section 47 certificate. Dentists may wish to contact Dental Protection for advice in specific situations. 

« SPSO Complaints Guidance

Protecting Vulnerable Groups »

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