Consent and Ethics: Adults

The Association of Anaesthetists have produced a really useful table describing the differences in capacity law around the UK, see here

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 healthcare 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 authorised.

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 healthcare 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:

• Adults with Incapacity (Scotland) Act 2000
• Mental Welfare Commission for Scotland – Adults with Incapacity Scotland
• Mental Welfare Commission for Scotland – The Mental Health Act in General Hospitals
• Edwardson, S. Baruah, R. Scots law and its relevance to anaesthesia, critical care, and pain medicine. BJA Education, 18(6), 178 - 184(2018).

Northern Ireland

Northern Ireland has its own version of the Mental Capacity Act. A link to the act can be found here: http://www.legislation.gov.uk/nia/2016/18/contents/enacted