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Consent to medical treatment 

 

AR-08-09-table-41

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Our interest in these figures

Part 5 of the Adults with Incapacity 2000 Act covers consent to treatment issues. It allows medical practitioners to provide treatment to people who lack the capacity to give informed consent to treatment.  To do this the person has to be assessed as incapable of providing informed consent to the proposed treatment and a certificate has to be completed to this effect.

Part 5 ensures that people are not denied medical treatment because they cannot consent. It also requires second opinions to be provided for certain treatments, or where there is a disagreement between the clinical team and the person with welfare powers in relation to medical treatment. We are responsible for arranging these second opinions and for ensuring that people are treated lawfully.

What we found

We have continuing concerns about the widespread failure to comply with the requirements of Part 5 of the 2000 Act. We make recommendations on this issue in almost all of our reports on visits to care homes, and have also made national recommendations to service providers and Government, following our themed monitoring reports. This year we visited a number of dementia care homes alongside the Care Commission. A major finding from the visits was the lack of Section 47 certificates of incapacity and widespread failure of care homes and GPs to treat people lawfully. The detail of our findings and recommendations can be found in Remember, I'm Still Me. We have recommended that the Scottish Government review this part of the 2000 Act as a matter of urgency.

We continue to provide second opinions under Section 48 for people treated under the authority of the 2000 Act. Two thirds of these requests are for the authorisation of treatment to reduce sex drive. Of the total of 34 requests received, 21 were in respect of medication to reduce sex drive, one of these was cancelled and one resulted in agreement that the patient could and did consent. 10 were for electroconvulsive therapy with one being refused and a recommendation that the Mental Health (Care & Treatment) (Scotland) Act  2003 be used.  The figures are little changed from previous years.

Unusually,  this year we have been asked, on three occasions, to arrange second opinions where there has been a disagreement between the medical staff and a proxy with powers to consent to medical treatment. On one occasion, the disagreement was in respect of physiotherapy for a young woman with profound multiple disabilities where the welfare proxy did not wish there to be any such treatment. The second opinion doctor subsequently authorised the use of physiotherapy in line with the wishes of the clinical team. In the second, again within the learning disability field, the disputed treatment (antipsychotics and other related medications) was postponed until after a proposed move of residence to another area.  In the final case, an elderly lady with severe dementia was admitted to hospital with distressing hallucinations and very disturbed behaviour. The welfare proxy did not agree with the decision to treat, as he regarded the symptoms as side effects of medication rather than requiring treatment. A carefully agreed treatment plan which took account of the differential diagnosis was agreed by the second opinion doctor in line with the wishes of the clinical team.