REVIEW OF THE IMPLEMENTATION OF PART 5 OF THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000: A QUALITATIVE STUDY OF IMPLEMENTATION AND EARLY OPERATION
EXECUTIVE SUMMARY
1. Part 5 of the Adults with Incapacity (Scotland) 2000 Act is concerned with provisions to safeguard the interests of adults with incapacity in relation to medical treatment and research and came into effect on 1 July 2002. A Code of Practice, giving guidance on the operation of Part 5, came into effect in conjunction with Part 5, following wide consultation by the Scottish Executive.
2. After Part 5 and the Code of Practice came into effect, healthcare professionals and others expressed concerns about the procedures for the operation of Part 5; in particular the processes connected with the completion of certificates under section 47, and the additional workload implications. Following a competitive tendering process, the Scottish Executive commissioned the Centre for Research on Families and Relationships in partnership with the University of Stirling Department of Nursing and Midwifery to carry out a qualitative research study into the implementation and early operation of Part 5.
3. Chapter One of this report introduces the study with a summary of the background to the research and a statement of its aims and objectives which were to:
- examine the experience of the operational impact of Part 5 of the Act, for adults who fall within the scope of Part 5, carers and those who represent such individuals; and for health and social care professionals with a responsibility for operating the Act and those with a direct duty under the Act
- explore levels of awareness about the provisions of Part 5 among health and social care providers and other key stakeholders
- explore the views of key stakeholders on the factors that may facilitate or inhibit the implementation and operation of Part 5, drawing on their own experiences, in particular on the issues of training and information and on the assessment and certification procedures
4. Chapter Two sets out the methodology used for the study. A case study approach was used in 4 areas of Scotland, employing a 3-stage process of data collection. Stage 1 took the form of postal questionnaires sent to 1,040 health and social care practitioners who had attended training on the Act. The questionnaire served a dual function (1) to gather data on the effectiveness and use of training and (2) to act as a mechanism for contacting practitioners to take part in Stage 2. Stage 2 took the form of telephone or face-to-face interviews with 28 practitioners, 14 trainers and people who facilitated sending out the questionnaires, 10 representatives of voluntary organisations and professional bodies with an interest in the Act and 4 carers of individuals who fell within the scope of Part 5.
5. Chapter Three contains information about training on the Act in the 4 areas. It was found that there was considerable variation across the 4 areas in how they had approached training on the Act, with some health and social care sectors taking a more integrated approach than others. The majority of those who had attended training were broadly satisfied with it. There seems to have been a poor attendance of independent sector trainees, as no mechanism exists for training them. While training was not mandatory, there was strong demand for training and for continuing follow-up training in varying forms.
6. Chapter Four contains the analysis of the postal questionnaire data collected from 229 experienced practitioners in 4 areas who had taken part in training on the Act. The questionnaire asked them about their knowledge and use of the Act generally, and of Part 5 in particular, and about the training they had received. A large majority of respondents said they would make use of the Act, and of Part 5 in particular. Over half the respondents had experience of the Act and reported no problems with what they had to do, and the support they received. They knew where to get help, advice and support should they need it
7. As far as training was concerned, most who had attended training were broadly satisfied with it. It was felt by other practitioners that GPs in particular had not received sufficient training on the Act, especially on Part 5. Specific requests for more training were identified by some respondents.
8. Overall, the picture that emerges is that practitioners were building up their experience in using the Act, with relative ease in most cases. Researchers formed the impression that, for most professionals who were interviewed, the Act has made little difference so far, either positive or negative, to their practice or professional relationships. Although concerns about individual practitioners' knowledge and use of the Act were noted, on the whole it appears that they have incorporated the Act in general, and Part 5 in particular, into their normal working practices.
9. Chapter Five gives details of the experiences of the practitioners from health and local authority sectors who were interviewed in Stage 2 of the study. There was a general welcome to the principles contained in the Act on the part of the respondents. It should be recognised, however, that the respondents were self-selecting and were therefore likely to already have an interest in the issues underlying the Act and Part 5; they may already have been, to a greater or lesser degree, committed to what the Act attempts to achieve. Generally, the more experience and knowledge of Part 5 that the respondents had, the more they tended to be positive about it, but all had criticisms or concerns about how it operated in practice. The GPs as a group were least engaged with the Act, although they were approving of its principles.
10. Chapter Six develops some of the themes that emerged from the interview data. These themes are the procedures relating to Section 47 certificates, the definition of "treatment", lawful authority, bureaucracy, good practice, next-of-kin consent, assessment of capacity, desire for more training, general practitioners and dental treatment.
11. Procedures relating to Section 47 certificates. In the case of patients who are receiving a number or series of treatments or procedures, it is not always clear which medical practitioner is the appropriate person to issue a certificate, with some medical practitioners reluctant to provide certificates for treatments for which they are not directly responsible. There was some confusion about what should be done with certificates of incapacity, both in terms of central storage and dissemination of awareness that they exist in respect of particular patients. Respondents identified certain benefits which might arise out of a system of central storage. Some respondents felt that guidance on who should be given copies of Section 47 certificates would be helpful.
12. Definition of "treatment". There was some confusion and uncertainty about what would be appropriate to include in the definition of "treatment"; with some evidence of a distinction being drawn between invasive and non-invasive treatments (with the latter not being certified); some evidence of erroneous interpretations of "emergency treatment"; non-specific references to "dental treatment"; uncertainty as to whether flu vaccinations might fall within "routine medical care"; uncertainty as to whether such therapies as occupational therapy and physiotherapy can be described as "treatment"; uncertainty about whether initial dental or therapy assessments or examinations are "treatment". Respondents expressed the desire for clarification of what should be inserted into a treatment plan.
13. Lawful authority. Health practitioners do not appear to regard Part 5 as being of significant value in terms of providing (previously lacking) authority for the provision of treatment. Their focus is more on good practice and the best interests of patients. Although the absence of a Section 47 certificate means that there may be no lawful authority for giving treatment, any risk to the practitioner in non-compliance is not seen as significant. Dentists and practitioners from the local authority sector may place more importance on the legal position of providers of treatment for adults with incapacity where no Section 47 certificate is in place.
14. Bureaucracy. The general feeling was that Part 5 procedures had increased workload, although some respondents felt that the amount of work involved was not as time-consuming as had initially been feared.
15. Good practice. Respondents had mixed views about the impact on good practice of Part 5 procedures. On one hand, some respondents felt that "good practice" provided sufficient tools for achieving aims similar to those of Part 5, thus Part 5 procedures imposed additional bureaucratic pressure for no purpose. On the other hand, some of the more experienced respondents did not seem to think the amount of additional work was unduly burdensome, and that Part 5 encouraged good practice.
16. Next-of-kin consent. Following the introduction of Part 5, some respondents felt that the clarification of locus of responsibility for consent had been helpful, resulting in improved ability to provide medical treatment for vulnerable adults and to focus on patients' needs. It was evident that the assumption persists that securing next-of-kin consent is necessary.
17. Assessment of capacity. There is no standard tool, procedure or model used for assessing capacity. Although the ability to assess capacity is a skill which all doctors should possess (an assumption which is implicitly made by Section 47 of the Act), respondents reported examples of doctors being unwilling to carry out assessments. Some doctors are anxious about their ability to assess capacity and in some circumstances there is a lack of adequate time or information to carry out an assessment; others regard capacity issues as being the preserve of psychiatrists or other specialists.
18. Desire for more training. There was a strong demand for more training on the Act to build on what had already taken place. In addition, respondents commented that their own ability to implement Part 5 would be compromised if other colleagues had not received training: this applied in particular to those whose work involved contact with GPs, who did not appear to have received training on the Act. It was the view of participants in this study that training for GPs was inadequate in general. The self-employed nature of GPs means that there is no organisation to which they belong that would take responsibility for carrying out training on the Act. Unlike other health and social care practitioners, GPs do not generally appear to have taken up those training opportunities that existed.
19. General practitioners. Overall, practitioners other than GPs lacked confidence in the implementation and practice of GPs. They reported that they had encountered a lack of knowledge about Part 5 on the part of GPs, as well as a reluctance to apply it. In some cases, hospital doctors were issuing certificates although it is arguable that they were not the medical practitioner "primarily responsible" for the patient in terms of Section 47 of the Act. Respondents reported that GPs seemed to feel that the requirements of Part 5 had been imposed upon them without adequate prior consultation, a view also expressed by the BMA and RCGP representatives.
20 Dental treatment. It appears that the existence of Part 5 can enable the provision of dental treatment to individuals who may in the past not have received it due to the absence of a legal framework for authority in the absence of consent. When Part 5 first came into effect, respondents identified a lack of awareness about Part 5 by GPs, although dentists dealing regularly with adults with incapacity were setting up systems to deal with the obtaining of certificates of incapacity from GPs. Specialist dentists in particular appear to be competent to carry out assessments of capacity and the need for a GP to issue a certificate of incapacity often delays the provision of treatment even when a patient may be in pain.
21. Chapter Seven contains evidence from interviews carried out with relatives of adults in respect of whom certificates of incapacity had been issued. Only 4 carers were interviewed as part of the study, so these findings should be read with caution. It was found that the level of awareness of Part 5 on the part of relatives and carers of adults with incapacity appeared to be low. However, their descriptions indicated that principles of the Act were being upheld. The representatives of organisations which give advice to relatives and carers also reported that few enquiries had been received concerning Part 5, suggesting perhaps a lack of knowledge about the certification process.
22 Chapter Eight contains conclusions and suggestions made by participants in the study. These include the following points.
- There was a generally positive attitude of the respondents interviewed in Stage 2 to the Act in general and Part 5 in particular. The general principles of the Act were welcomed and referred to with approval.
- Various benefits to patient care arising from Part 5 had been identified, such as the ability to provide treatment for vulnerable adults where in the past there had been no legal framework for consent or authority to be obtained for this.
- Professionals exhibited willingness to formalise "good practice" and a desire to act in the best interests of patients. It should be possible to build on this ethos if the benefits of Part 5 can be demonstrated.
- There is no system in place for monitoring the use of Part 5. There is no national or statutory system for checking the appropriateness or otherwise of the issuing (or non-issue) of certificates of incapacity; and none for checking the wording of certificates.
- There is also no system of enforcement by means of penalties for non-compliance. It was not clear if there were any incentives for compliance either.
- There is the danger that Part 5 procedures might be seen as having little purpose and no benefit to patient care; this attitude was prevalent amongst GPs but respondents reported that it also exists in other groups. It would appear that certain groups and some individual practitioners have not been convinced about the value of the Act.
- The question of whether all medical practitioners have the ability to assess capacity was raised surprisingly often, given that Section 47 of the Act is based upon this assumption. Concerns were also expressed about the fact that there is often insufficient time or information to carry out an adequate assessment.
- There was confusion and uncertainty concerning what "treatment" is; some evidence of a distinction being drawn between invasive and non-invasive treatments (with the latter not being certified); some evidence of erroneous interpretations of "emergency treatment"; lack of specificity; uncertainty about what can be included in the treatment plan including, for example, whether flu vaccinations might fall within "routine medical care"; uncertainty about whether occupational therapy and physiotherapy can be described as "treatment"; uncertainty about whether initial dental or therapy assessments or examinations are "treatment".
- The GP respondents exhibited little familiarity with Part 5 of the Act and had little, if any, experience of using Part 5, although non-GP respondents were able to give examples of good practice by individual GPs. GPs tended to describe what they did in terms of acting in the best interests of patients, although they did not specifically equate their practice with complying with Part 5.
- Other respondents reported that GPs seemed to feel that the requirements of Part 5 had been imposed upon them without adequate prior consultation. There was a view that there had been a failure by those involved in the consultation prior to the Act to recognise potential workload implications before the Act was passed.