REVIEW OF THE IMPLEMENTATION OF PART 5 OF THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000: A QUALITATIVE STUDY OF IMPLEMENTATION AND EARLY OPERATION
CHAPTER ONE INTRODUCTION
Background to the Research
1.1 The Adults with Incapacity (Scotland) Act 2000 ("the Act") was passed in March 2000. Part 2 of the Act, dealing with continuing powers of attorney and welfare powers of attorney came into force in July 2001 and Part 6, containing provisions concerning guardianship and intervention orders in April 2002. Part 5 of the Act, with which this Report is concerned, came into force in July 2002. Part 5 contains provisions to safeguard the interests of adults with incapacity in relation to medical treatment and research. It provided, for the first time, a clear statutory framework regulating what may be done by medical practitioners and others authorised by them.
1.2 Section 47 of the Act confers a general authority on the medical practitioner primarily responsible for the treatment of the adult to do what is reasonable in the circumstances, in relation to medical treatment, to promote or safeguard the person's interests, for as long as the person is certified as incapable in relation to a decision about the medical treatment in question. The general authority does not apply to certain specified treatments such as electro-convulsive therapy, abortion and sterilisation, and there are separate regulations in place setting out the circumstances in which such specified treatments can be carried out.
1.3 Before Part 5 came into effect, an initial consultation process ("the 2002 consultation exercise") was conducted by the Scottish Executive. Three documents were distributed to a range of organisations and individuals for their comments: a Code of Practice giving guidance on the operation of Part 5, regulations on setting up a Ethics Committee and a paper seeking the views on the proposed treatments and safeguards to be regulated. The Code of Practice was felt by some respondents to be less useful than other previously issued codes 1 and this was amended to take account of some of the concerns arising out of the 2002 consultation exercise.
1.4 Research on other sections of the Act is underway. A two year study, Learning from Experience, being carried out by a partnership of Alzheimer Scotland - Action on Dementia and the Scottish Development Centre for Mental Health, has been funded by the Legal Studies Research Group and the Scottish Executive Justice Department to look at how parts 1, 2, 3 and 6 the Act are being implemented, and at their use and impact 2.
1.5 After Part 5 and the Code of Practice came into effect, concerns were expressed by healthcare professionals and others about the procedures for the operation of Part 5, in particular the process connected with the completion of certificates under section 47, and additional workload implications. 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 on its behalf a qualitative review of the implementation and operation of Part 5 of the Act. This complements the consultation exercise on the review of the Code of Practice which was launched by the Scottish Executive in March 2003 ("the 2003 consultation exercise"). The written responses to the consultation paper were analysed and published in February 2004 3.
Aims and Objectives
1.6 The main aim of the research was to explore the experience of key stakeholders of the implementation and early operation of Part 5 of the Act.
1.7 The specific objectives of the research 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 assessment and certification procedures