Capacity: a growing issue

A major cross-profession conference took place in March to scrutinise the law in Scotland relating to mental health and incapacity, and whether it is adequate to achieve its purposes.

Hosted by the Law Society of Scotland in conjunction with the Mental Welfare Commission for Scotland and the Equality & Human Rights Commission, the two-day event in St Andrews was the first of its kind since the introduction of the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.

Attended by legal, medical, mental health and social work professionals, along with carers and service users, a very full programme discussed issues including aspects of incapacity, deprivation of liberty, the Mental Health Tribunal, current issues facing guardians and attorneys, and planned legislative reform.

Its timing was apt, not least in coinciding with the UK Supreme Court’s decisions in the “Cheshire West” cases ([2014] UKSC 19), giving important rulings on whether three incapacitated adults in England were subjected, through their care arrangements, to a “deprivation of liberty” for the purposes of article 5 of the Human Rights Convention. In essence, the court held that the same test applies to everyone, regardless of any disability, the key feature being whether the person concerned is under continuous supervision and control and is not free to leave. In the cases in question, the test was met and the arrangements had to be authorised by the rules in England & Wales for incapacitated adults and subject to regular independent checks.

David Leighton, advocate, presenting on the subject, warned of the problems where an individual cannot give valid consent, and that you cannot assume that they have consented just because they are compliant.

Among other issues, Leighton expressed “quite serious doubts” over whether deprivation of liberty is something that can be authorised in a welfare power of attorney, and whether the test for the power of attorney becoming exercisable (2000 Act, s 16(5)) meets the earlier Winterwerp criteria relating to the level of mental disorder justifying compulsory confinement.

When to intervene?

That discussion was followed by Dr Donald Lyons, chief executive of the Mental Welfare Commission for Scotland, who focused on the ground for compulsion known as SIDMA (significantly impaired decision-making ability), and what it meant. Capacity for this purpose is determined in relation to consent to medical treatment, and can be difficult to judge: “IT IS NOT ‘ALL OR NOTHING’”, Lyons put in capitals on his slide, as you can have SIDMA but retain the capacity to consent to individual treatments. Rational people can make decisions for emotional reasons, and there is a danger (this also applies to incapacity under the 2000 Act) of people being treated under compulsion just because they don’t agree with their doctor.

Solicitor Adrian Ward, who was given an ovation having only the night before been honoured for “Lifetime Achievement” in this field at the Scottish Legal Awards, has worked tirelessly to achieve recognition that individuals may have and lack capacity in different respects, and that they should be encouraged and facilitated to exercise capacity where they do have it. But Ward is equally clear that there are times when, for their own protection, people need others to take decisions for them, and he is appalled by draft proposals of a UN committee, established under the Convention on the Rights of Persons with Disabilities, that would have the effect of outlawing all “substitute decision-making” procedures such as guardianship, which the committee believes amount to a deprivation of rights. The subject formed one of the workshop sessions, and is explained further in his article in the online edition of the April 2014 Journal.

Patient-focused

The patient-focused ethos of our present legal frameworks was also addressed by Dr Joe Morrow, President of the Mental Health Tribunal, who described the culture of the MHT as one of “therapeutic jurisprudence”. That, he believed, made sense in terms of the s 1 principles in the 2003 Act – and indeed the “Care and Treatment” element of the Act’s title.

Being specialist in law and psychiatry, and with 27% of general members coming from a user/carer background, enables the tribunal to facilitate patient involvement, and with a general dispensing rule it can adapt its procedural framework to the patient before it. But lawyers don’t always get this, and in Morrow’s words the MHT sometimes has “punch-ups” with those who attempt to make hearings too adversarial. You don’t get the best information that way, he said; the tribunal’s methods don’t mean it isn’t rigorous – it just requires a different skillset. He added: “There are huge opportunities for lawyers in terms of representation.”

A brief review like this can only pick out certain highlights, but perhaps serves to point up the growing significance of this area for all disciplines involved – as does, for solicitors, the increasing level of guidance now provided by the Society.