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United Kingdom (Scotland)

2016: Decision making and legal capacity in dementia

Consent

Consent to medical treatment

Common law rules govern access to information from doctors and consent to treatment provided that a person has sufficient capacity to consent. This may still be the case for many people with dementia.

A person who is unable to make a decision relating to medical treatment due to a mental disorder (the definition of which includes dementia) is classed as incapable in Scotland. Incapacity is determined on a case-by-case basis as a patient might be able to make a decision for one form of treatment but not another. Under mental health laws in Scot­land all decisions made on behalf of a person with impaired capacity must implement the following principles:

a)       Benefit the person.

b)       Restrict the person’s freedom as little as possible whilst still achieving the desired benefit.

c)       Take account of the person’s past and present wishes (providing every assistance to aid communication as appropriate to the needs of the person).

d)       Take account (as far as reasonable and practical) the views of relevant others.

e)       Encourage the person to use existing abilities and where possible develop new skills.

The Mental Health (Care and Treatment) (Scotland) Act 2003 covers only treatment for mental disorder (which might include the treatment of symptoms associated with dementia and also the treatment of concomitant mental disorders, not secondary to the dementia). The Adults with Incapacity (Scotland) Act 2000 can cover any form of treat­ment in circumstances where the 2003 Act does not apply if the person is unable to take the decision in question. There are special provisions under the 2000 and 2003 Acts for treatments for the reduction of sexual drive. In both Acts, the specific provisions on medication should be read along with the Principles of the Acts. The Codes of Practice give important guidance on many aspects of drug treatment.

Welfare Guardians and welfare attorneys who have medical decision-making powers can consent on the patient’s behalf but not to certain medical treatments covered under the Mental Health Act or which Scottish Ministers may list. A person who has been granted an intervention order may also be authorised to make a specific decision about medical treatment on behalf of a person with incapacity.

Under section 47 of the Adults with Incapacity (Scotland) Act 2000, a medical practi­tioner who is primarily responsible for the medical treatment of an adult and considers him/her incapable in relation to a decision about medical treatment, is authorised to carry out the treatment required. He/she must issue a certificate to the effect that an assessment of capacity has been carried out and the nearest relative and primary carer has been consulted (as far as practical). This certificate gives him/her the right to do what is reasonable in the circumstances, in relation to the medical treatment in question, to safeguard or promote the physical or mental health of the patient. Where the patient has several medical conditions the doctor can draw up a medical treatment plan. This will identify the necessary treatments which the person is capable and incapable of consent­ing to. The patient’s healthcare and capacity to consent should be reviewed regularly but a certificate can authorise treatment for up to three years where the patient’s capacity is unlikely to change. The certificate can also be issued by a dental practitioner, an ophthal­mic optician, a registered nurse or any person described as suitable by the Scottish Min­isters. These categories of practitioner are only authorised to assess capacity and treat in relation to his or her own specialism.

According to Patrick (2006), consent or refusal of treatment by a person with dementia should be respected so long as he/she has the capacity to consent to medical treatment. Once this is no longer the case, a welfare attorney or guardian may be able to consent to treatment (or refuse it) on his/her behalf (except where a refusal to treat would be life-threatening).

The Adults with Incapacity Act contains special provisions for situations where there is disagreement between the person who issued a certificate and the person/s authorised to consent on behalf of the person with incapacity. In fact, it allows anyone with an inter­est in the patient to challenge a decision made by either the doctor or the proxy, and request a second opinion.

A new booklet ‘Caring and Consent – your right to be involved in decisions about the healthcare of the adult you care for’ (2009) NHS Scotland, sets out the rights of carers to be consulted about treatment plans. However, it is only legally appointed proxies with appropriate powers who have a right to make any final decisions. This booklet is avail­able in several languages including Spanish, French, Polish and Croatian.

The right to refuse treatment

A person may refuse treatment provided that he/she has the legal capacity to do so, even if he/she is likely to die without the treatment. A patient who refuses treatment may do so on irrational grounds and does not have to justify the refusal. If a doctor considers that a patient who is refusing treatment lacks legal capacity, he/she may proceed in accordance with the provisions of the Adults with Incapacity (Scotland) Act 2000 (Patrick, 2006).

The right to withdraw consent

In the case of people with incapacity who have been involuntarily detained and for treatment which also necessitates the patient’s consent, if a patient has consented to treatment or to a treatment plan, consent can be withdrawn at any stage of the treatment (Mental Health (Care and Treatment) (Scotland) Act 2003.

Consent to research

Section 51 of the Adults with Incapacity (Scotland) Act 2000 deals with consent to research and clinical trials.

Surgical, medical, nursing, dental or psychological research cannot be carried out on people who lack the capacity to consent to such research unless research of a similar nature could not be carried out on an adult who is able to consent to such research AND provided that the purpose of the research is to obtain knowledge of:

f)        the causes, diagnosis, treatment or care of the adult’s incapacity; or

g)       the effects of any treatment or care given during his/her incapacity.

In addition, the following conditions must be fulfilled:

h)       The research must be likely to produce real and direct benefit to the adult.

i)         The adult does not indicate unwillingness to participate in the research.

j)         The research has been approved by the Ethics Committee.

k)       The research entails no foreseeable risk, or only minimal foreseeable risk to the adult.

l)         And consent has been obtained from any suitably authorised guardian or welfare attorney, or failing that, from the adults nearest relative.

Research which is unlikely to produce real and direct benefits can nevertheless be car­ried out if it would contribute towards a significant improvement in the scientific under­standing of the adult’s incapacity which would be likely to lead to a direct and real benefit to the adult or to other people with the same incapacity. The above conditions would nevertheless have to be fulfilled.

Consent to clinical trials

Approval by the Ethics Committee is not necessary for the clinical trials of medicinal products provided that a favourable opinion has already been given by an ethics committee (other than the Ethics Committee) in accordance with regulation 15 of the Medicines for Human Use (Clinical Trials) Regulations 2004.

The consent of the guardian, welfare attorney or nearest relative is not needed if it was not practicable to contact such person before the decision to participate had to be taken AND consent was obtained from a person not involved in the clinical trial other than the main treating doctor or someone nominated by the relevant healthcare provider.

The consent of the guardian, welfare attorney or nearest relative is also not needed if participation in the clinical trial is considered a matter of urgency for the person with incapacity.

Advance Directives

There is no statute directly governing the use of advance directives in Scotland. The Adults with Incapacity (Scotland) Act 2000 is the main legislation on proxy decision mak­ing for adults with incapacity in Scotland but it makes no reference to advance directives. It covers financial decisions (except wills) and welfare decisions, which include all health­care, except compulsory treatment for mental disorder under the 2003 Mental Health Act. However, the Principles of the Act require the past and present wishes of the adult to be taken into account, and there must be justifiable reason for going against these.

The Mental Health (Care and Treatment) (Scotland) Act 2003 recognises advance direc­tives in the case of people who are subject to compulsory orders (Patrick, 2006). An advance directive can be overturned by clinical judgement.

Conditions surrounding the writing, validity and registering of an advance directive

A person must be over 18 and have sufficient capacity to make an advance directive. This means that a person may lack capacity in one domain (e.g. to make financial decisions), but still be considered capable of writing an advance directive. Capacity is presumed but in case of doubt, it can be established by a court of law. Although advance directives are usually written documents, they may also be witnessed oral statements, signed printed cards or discussion notes recorded in patients’ medical files.

In Scotland, to appoint a healthcare proxy (i.e. a welfare attorney), a person must be aged 16 or over and must obtain a certificate from a solicitor confirming that they understand what is involved and are not acting under undue influence.

What an advance directive can cover

Advance directives can include decisions relating to:

  • Treatment of medical conditions;
  • Treatment of psychiatric conditions;
  • Care and welfare decisions;
  • Life-supporting treatment;
  • Life-saving treatment;
  • Appointment of a healthcare proxy and
  • Research

but not the refusal of basic care (procedures essential to keep the person comfortable, e.g. warmth, shelter, pain relief and the management of distressing symptoms), the offer of food and drink by mouth or requests for euthanasia or unreasonable treatment.

According to the Adults with Incapacity (Scotland) Act 2000, healthcare proxies (welfare attorneys or guardians) must be consulted about treatment decisions unless it is impracticable to do so (for example, it is impossible to contact the proxy).

Obligation to comply with instructions contained in an advance directive

Advance directives are not legally binding in Scotland. However, a written advance direc­tive would have to be considered if it is clear, unambiguous and reasonably proximate. Doctors have a legal and ethical obligation to act in the best interests of patients which, in addition to clinical factors, involves taking into account the past and present wishes of patients. General statements or preferences should be taken into account and respected if appropriate but they are not legally binding.

In all cases, a contemporaneous decision by a competent person overrides any decision made in an advance directive. As competence is not an all-or-none affair, it should also be possible to challenge or express disagreement with a particular decision recorded in an advance directive provided that the person has sufficient capacity with regard to that decision.

Section 1 of the Adults with Incapacity (Scotland) Act 2000 provides five principles, which must be followed by those who intervene in the finances or welfare of an adult with incapacity under the terms of the Act. The third Principle requires that anyone inter­vening must take into account the “past and present wishes and feelings” of the adult as far as these are ascertainable. The final decision on what action to take rests with the person given responsibility for the intervention under the Act. This may be an attorney appointed by the adult when capable, a doctor authorised to give medical treatment, a researcher, an intervener or a guardian.

Doctors should comply with advance directives even if they go against their personal beliefs or values. They may arrange for a colleague to take over a patient’s treatment but if this is not possible, they must comply with a valid advance directive. (NOTE - This is a very grey area – the provision under Part 5 of the Adults with Incapacity Act for dealing with disputes over medical treatment would come into effect.)

Amending, renewing and cancelling advance directives

An advance directive can be amended or cancelled at any time provided that a person has the capacity to do so.

Healthcare proxies

A person may grant a power of attorney relating to his/her personal welfare in accord­ance with the provisions of Part 2 of the Adults with Incapacity (Scotland) Act 2000. He/ she can appoint one or more persons as welfare and or financial (continuing) attorney. Personal welfare does not automatically include healthcare decisions. Powers to make healthcare decisions must be specified in the document.

For a welfare power of attorney to be valid, certain conditions must be fulfilled, such as:

m)     It must be made in writing by the granter.

n)      It must be clearly stated the granter wishes it to be a welfare power and to include the power to make healthcare decisions.

o)      It must be clearly stated that consideration has been given to how incapacity relating to the decisions covered by the welfare power should be determined. A clause can be included that sets out the specific circumstances. Otherwise it can be left to the attorney to decide when capacity has been lost.

p)       A certificate in the prescribed form must be obtained from a solicitor or other authorised person.

The solicitor (or other authorised person) must have interviewed the granter immedi­ately prior to the granter signing the document. He/she must be satisfied, based on his/ her own experience or as a result of information provided by named individuals, that the granter understood the nature and extent of the measure. He/she must also state that he/she has no reason to believe that the granter was acting under undue influence or that any other factor vitiates the granting of the power.

A welfare power of attorney can only be granted to an individual (not a person acting in an official capacity such as officer of a local authority, or a firm of solicitors) and does not come into force until the granter has lost the capacity for decisions related to matters contained in the welfare power of attorney. It does not end if the granter or the attorney goes bankrupt.

The attorney only has authority to act once the power of attorney has been registered. A welfare attorney should not be obliged to do anything which is unduly burdensome or expensive (in comparison to its value or utility) even if it is within the scope of his/her powers. Attorneys must keep records of their activities on behalf of the granter and act in accordance with the principles.

The granter of a welfare power of attorney may revoke it after it has been registered subject to certain conditions being fulfilled, i.e. the revocation must be in writing and incorporate a certificate in due form by a solicitor or other authorised person who certi­fies that he/she has interviewed the person and that the person understood the effect of the revocation and is making the decision freely.

The attorney may resign after the document conferring power has been registered. If the granter and the attorney are married, the power of attorney would come to an end if they separate or divorce or if the marriage is annulled. In the case of civil partnerships, the same would apply in the case of separation, dissolution or nullity of the partnership.

Legal Capacity

Issues surrounding the loss of legal capacity

The first two articles of the Adult Support and Protection (Scotland) Act 2007 contain guiding principles for people intervening in an adult’s affairs. The first article states that a person may intervene or authorise intervention only if satisfied that the intervention will provide benefit to the adult which could not be reasonably provided without such intervention and that of the range of options available, it is the one which would least restrict the adult’s freedom.

The second article states that a public body or office-holder who is authorised to inter­vene in an adult’s affairs should have regard to the general principle on intervention in an adult’s affairs and to the adult’s ascertainable wishes and feelings (past and present). The views of the adult’s nearest relative, primary carer, guardian or attorney, or any other person with an interest in the adult’s wellbeing or property should be taken into con­sideration. The importance of involving the adult and respecting his/her individuality is highlighted. It should be ensured that s/he participates as fully as possible in the per­formance of the function and in addition that s/he is provided with the information and support necessary to enable such participation.

The adult must not, without justification, be treated less favourably than other adults who are not at risk might be treated in a comparable situation. His/her abilities, back­ground and characteristics (including the age, sex, sexual orientation, religious persua­sion, racial origin, ethnic group and cultural and linguistic heritage) should also be taken into consideration.

Proxy decision making

Guardianship

The Adults with Incapacity (Scotland) Act 2000 covers issues related to the property, financial affairs and personal welfare of adults with incapacity due to a mental disor­der (or difficulties communicating). As such, it covers guardianship as well as continuing powers of attorney and welfare powers of attorney. It also covers intervention orders which are for one-off decisions or actions, i.e. in cases where a ‘once only’ decision is nec­essary. The Act was amended through Parts 2 and 3 of the Adult Support and Protection (Scotland) Act 2007.

In the past, people with learning disabilities were sometimes “boarded out” with unre­lated guardians. This practice can be traced back to the mid-nineteenth century. It became legally binding in 1913 and was extended to cover all people with a mental disorder in 1960. However, in 1982 the Government rejected “boarding out” as a solution to protecting the welfare of people with mental disorders and the alternative solutions were found in the provisions of the Mental Health (Scotland) Act of 1984.

Under the Mental Health (Scotland) Act 1984, it was possible to appoint a mental health guardian as well as more archaic forms of guardianship such as the curator bonis, the tutor-at-law or the tutor-dative (details can be found in the Lawnet report of 1999). Situ­ations arose whereby a person had three different kinds of guardian, e.g. a guardian (as appointed under the Mental Health (Scotland) Act 1984), a curator bonis for financial management and a tutor-dative for medical decisions. The Adults with Incapacity (Scot­land) Act 2000 phased out these forms of guardianship and the holders of such offices were made guardians under the new Act.

Conditions for the appointment of a guardian

Any person (including the person him/herself) with an interest in the property, financial affairs or personal welfare of the adult with presumed incapacity can apply to the sheriff for a guardian to be appointed. Before starting the process for a guardianship order, the sheriff must be satisfied that the adult is incapable of making or acting on a specific deci­sion or decisions, safeguarding or promoting his/her interests relating to his/her prop­erty, financial affairs or personal welfare; that s/he is likely to continue to be incapable of such acts and that no other means provided by or under the Adults with Incapacity (Scotland) Act 2000 would be sufficient (article 58).

Within this Act, an adult is understood to mean a person of 16 years and over. Incapac­ity is defined as being incapable of acting, making decisions, communicating decisions, understanding decisions or retaining the memory of decisions by reason of mental dis­order or inability to communicate due to a physical disability.

How guardianship is arranged

Not more than 30 days before the application for a guardianship order is lodged in court, reports of an examination and assessment of the adult by at least two medical practitioners must be provided. If the incapacity is due to mental disorder, one of the medical practitioners must be “a relevant medical practitioner”. If the application only relates to property or financial affairs, the report must be based on an interview or assessment of the adult by a person who has sufficient knowledge to make such a report.

If the applicant only has an interest in the personal welfare of the adult and is not the local authority, s/he must notify the chief social work officer of his/her intention. The lat­ter or alternatively, the mental health officer, must prepare the necessary report within 21 days. The guardian may be asked to provide caution or some form of security that the sheriff sees fit.

At any time during the application process, the sheriff may make an order for the appoint­ment of an interim guardian for up to 3 or a maximum of 6 months. The adult must be officially informed of the appointment of a guardian.

Who can be a guardian

The sheriff may appoint any person whom s/he considers suitable and who has con­sented to being appointed as a welfare and/or financial guardian. If the measure is only to cover personal welfare and there is no suitable family member or friend willing or able to apply, the chief social work officer of the local authority can apply to be appointed.

Where the local authority has assessed that a financial guardian is needed, and there is no suitable family member, the local authority cannot nominate itself. The local authority can nominate a professional, for example a solicitor or an accountant to be the financial guardian.

For any individual to be appointed guardian, the sheriff must be convinced that s/he is aware of the adult’s situation and circumstances and the functions of a guardian. In addition, the sheriff must ensure that the guardian would have access to the adult with incapacity, be capable of carrying out the functions of guardian and not be likely to have a conflict of interests with the adult with incapacity. Any possible reasons for the unsuit­ability of the individual must be considered by the sheriff. These conditions can be found in article 59.

If at any time, the guardian is unable to fulfil his/her functions, a substitute guardian can be appointed for the same period of time as the original guardian. This can even be arranged in advance, e.g. when the original guardian is appointed.

The duties and responsibilities of guardians

Article 64 covers the functions and duties of guardians which include the power to deal with property, financial affairs or personal welfare of the adult with incapacity as spec­ified in the guardianship order. If authorised to deal with personal welfare, it may be specified in the order that the guardian has the right to defend or pursue an action to annul a marriage or to divorce or separate in the name of the adult with incapacity, or to manage certain parts of the property or financial affairs of the adult. A guardian does not have the power to place the adult with incapacity in hospital for treatment of mental disorder against his/her will or to make certain decision on his/her behalf in relation to the Anatomy Act 1984.

Managing the finances of the person on guardianship

The financial affairs of the adult may be managed by a guardian provided that the latter has been given the necessary powers. Schedule 2 of the Adults with Incapacity (Scot­land) Act 2000 deals with the management of the estate of the adult. It stipulates that the guardian must draw up a management plan for the management, investment and realisation of the adult’s estate, taking into account the adult’s needs and insofar as s/ he has been granted the necessary powers. The plan must be submitted to the Public Guardian for approval.

Also, as soon as possible after taking up his/her office (but within 3 months), the guardian must draw up an inventory of the adult’s property or financial affairs. The Public Guard­ian may free the guardian from this obligation or may ask the guardian to do something else instead.

All money received by the guardian must be deposited in a bank or building society in an account in the name of the adults and ensure that amounts exceeding £500 (or another specified amount) generate interest.

The guardian may be authorised to carry on a business on behalf of the adult with inca­pacity. The guardian may not, without the consent of the Public Guardian, purchase accommodation for, or dispose of any accommodation currently being used a dwelling house by, the adult.

Measures to protect the adult from misuse of power

Guardians have to keep records of the work they do on behalf of the person with inca­pacity (article 65). They can be withdrawn or have their powers amended if the Public Guardian decides that a particular measure is no longer needed, is not being correctly handled by the guardian or could be managed in another way without the necessity for guardianship.

If a guardian uses the funds of the adult even though s/he does not have the power to do so; or whilst aware of the termination or suspension of existing powers, s/he is liable to repay the funds with interest (article 81) unless s/he acted reasonably or in good faith (article 82).

Compensation and liability of guardians

Article 68 deals with the reimbursement and remuneration of the guardian. It states that the guardian is entitled to be reimbursed out of the estate of the adult with incapacity for any outlays reasonably incurred in the exercise of his/her functions. This is not applicable in the case of chief social work offers taking care of the personal welfare of the adult.

When fixing the remuneration of the guardian, the Public Guardian takes into account the value of the estate of the adult with incapacity. If a guardian is found to be in breach of any duty of care or of any other obligation linked to guardianship, part or all of his/her remuneration may be withheld (article 69).

Duration of guardianship

Guardians are appointed for 3 years or any other period of time, including indefinitely, as decided by the sheriff. A guardian can resign from his/her function but may be requested to wait until a replacement guardian has been found.

The right to appeal

Anyone found incapable for the purposes of the Adults with Incapacity Act may appeal to the sheriff against the finding. The adult him/herself or anyone with an interest in the subject matter of the decision may make an appeal (s14). A person can also appeal to the sheriff principal against a sheriff’s decision about incapacity. There is a further appeal, with permission of the court, to the Court of Sessions.

Powers of Attorney

Continuing powers of attorney

A power of attorney relating to property or financial affairs which continues to have effect in the event of the granter’s becoming incapable of managing that property or those affairs is known as a continuing power of attorney. This is covered by Part 2 of the Adults with Incapacity (Scotland) Act 2000.

For a continuing power of attorney to be valid, certain conditions must be fulfilled, such as:

q)       It must be made in writing by the granter.

r)        It must be clearly stated the granter wishes it to be a continuing power.

s)        The granter must indicate that s/he has considered how they want incapacity to be determined if the power is only to be valid once the granter is incapable of handling a specified matter.

t)        A certificate in the prescribed form must be obtained from a solicitor or other author­ised person.

The solicitor (or other authorised person) must have interviewed the granter immedi­ately prior to the granter signing the document. S/he must be satisfied, based on his/ her own experience or as a result of information provided by named individuals, that the granter understood the ‘nature and effect’ of the document (s16(3)). S/he must also state that s/he has no reason to believe that the granter was acting under undue influence or that any other factor vitiates the granting of the power.

The continuing power of attorney ends if the granter or the attorney is declared bank­rupt.

Welfare powers of attorney

A person may grant a power of attorney relating to his/her personal welfare in accord­ance with the provisions of Part 2 of the Adults with Incapacity (Scotland) Act 2000.

For a welfare power of attorney to be valid, certain conditions must be fulfilled, such as:

u)       It must be made in writing by the granter.

v)       It must be clearly stated the granter wishes it to be a welfare power.

w)     It must indicate that the granter has considered how incapacity relating to the deci­sions covered by the welfare power should be determined.

x)       A certificate in the prescribed form must be obtained from a solicitor or other author­ised person.

The same requirements apply to the certificate from the solicitor (or other authorised person) as mentioned above in the section on continuing powers of attorney.

A welfare power of attorney can only be granted to an individual (not a person acting in an official capacity such as officer of a local authority) and does not come into force until the granter has lost the capacity for decisions related to matters contained in the welfare power of attorney. It does not end if the granter or the attorney goes bankrupt.

A welfare attorney cannot place the granter in hospital for the treatment of mental dis­order against his/her will or make certain decisions which fall under the scope of the Anatomy Act of 1984.

If the granter intends the attorney to be able to make medical decisions on his/her behalf, this must be specifically stated in the document.

General issues linked to continuing and welfare powers of attorney

The granter can appoint one or more attorneys who can be granted welfare and/or financial powers.

The deed should indicate if the attorneys can act alone or must always act jointly. The granter may wish to appoint a substitute attorney in case the first attorney cannot act.

The attorney only has authority to act once the power of attorney has been registered. A continuing or welfare attorney should not be obliged to do anything which is unduly burdensome or expensive (in comparison to its value or utility) even if it is within the scope of his/her powers. Attorneys must keep records of their activities on behalf of the granter.

The granter of a continuing or welfare power of attorney may revoke it after it has been registered subject to certain conditions being fulfilled, i.e. the revocation must be in writ­ing and incorporate a certificate in due form by a solicitor or other authorised person who certifies that s/he has interviewed the person and that the person understood the effect of the revocation and is making the decision freely.

The attorney may resign after the document conferring power has been registered. If the granter and the attorney are married, the power of attorney would come to an end if they separated or divorced or if the marriage was annulled. In the case of civil partnerships, the same would apply in the case of separation, dissolution or nullity of the partnership.

Other provisions for the management of funds under the Adults with Incapacity (Scot­land) Act 2000

Access to Funds Scheme

There are provisions under Part 3 of the Adults with Incapacity (Scotland Act) 2000 for a private individual to manage the funds of someone with incapacity where his/her income and assets are not complex. It also allows organisations to apply for approval to manage the funds of an individual where there is no private person available to do so. It involves the setting up and operating a designated bank account in the name of the adult. An application to the scheme is made to the Office of the Public Guardian. It is an inexpensive way to manage funds in circumstances where the adult does not own property and financial guardianship is not necessary.

Management of residents’ funds in a care home or hospital

There are special provisions in the Part 4 of the Adults with Incapacity (Scotland) Act 2000 for financial management by a care home manager or hospital for a resident/long­term patient who lacks capacity to do so for themselves and there is no other interested person to do so. This might include claiming, receiving, holding and spending the per­son’s pension, benefit, social security allowance or money to which the adult with inca­pacity is entitled, as well as holding or disposing of the resident’s moveable property. This scheme is appropriate for managing funds where the adult does not have substan­tial savings. Where savings are above a prescribed limit the local authority must nominate a professional financial guardianship to manage the adult’s funds.

Capacity In Specific Domains

Marriage and divorce

A marriage is valid provided that both parties were mentally capable of understanding the nature of marriage and of consenting to it at the time it was contracted/celebrated. As only limited mental capacity is required for the fulfilment of these criteria43, the appointment of a curator bonis (no longer applicable) or a guardian does not necessarily affect the right to marry. Indeed, according to article 304 of the Adults with Incapacity (Scotland) Act 2000, the appointment of a guardian does not imply that the adult loses capacity in an area that the guardianship order does not cover. So a guardian cannot consent to or prevent a person from marrying. On the other hand, a guardian may be granted the power to pursue or defend the nullity of marriage, separation or divorce.

Under section 5 of the Marriage (Scotland) Act 1977, the guardian, like any other per­son, can object to a marriage by submitting an objection in writing to the district reg­istrar who has been informed of the intention of the person in question to marry. If the objection is made on the grounds that the person does not understand the nature of the marriage ceremony or of consenting to marriage, it must be accompanied by a medical certificate. The registrar then notifies the Registrar General who decides whether the marriage may proceed. Anyone who disagrees with the decision of the Registrar General may apply to the court for a decision.

If a person is married, his/her spouse is legally obliged to provide maintenance. This means that the local authority can ask the spouse to contribute towards the cost of care.

Voting capacity

Having a guardian does not prevent a person from voting.

Contractual capacity

Business transactions/agreements

A person is presumed to be competent and hence capable of entering into a legal trans­action unless the contrary is proven. According to the Scottish Law Commission (1991), capacity (or lack of it) is determined after consideration of medical evidence and also on the basis of what was said and done at the time of a particular transaction. Moreover, for a transaction to be considered as invalid, the person’s incapacity must have affected the transaction in question. If incapacity is determined, a transaction is declared void and this applies irrespective of whether the other party was aware of this incapacity.

An adult with incapacity for whom a guardian has been appointed does not have the right to enter into any transaction covered by the powers of his/her guardian. The guardian would be personally liable for any transaction carried out on behalf of the adult with incapacity if the former had not disclosed that s/he was acting on behalf of the latter (article 67 of the Adults with Incapacity (Scotland) Act 2000).

If a third party enters into a transaction with an adult whom he knows is under guardian­ship, the transaction would not be regarded as void solely on the basis of the incapacity of the adult under guardianship (article 56 (5) of the above-mentioned act).

Transactions involving the sale of goods

Section 3 (2) of the Sale of Goods Act of 1979 provides a certain degree of protection against unscrupulous sellers, whilst also ensuring that an incapacitated person pays for goods or services which are classed as necessaries. It states that:

“Where necessaries are sold and delivered to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price for them.”

Necessaries are defined under 3 (3) as “goods suitable to the condition in life of the per­son concerned and to his actual requirements at the time of the sale and delivery.” Suit­ability to a person’s condition refers to his/her place in society and not his/her mental or physical condition. It has been established in case law that a person’s requirements are determined by what s/he already possesses. If the person already possesses a sufficient quantity of a particular item and then purchases a large quantity of the same item, it would be unlikely to be considered as a necessary. People covered by the Sale of Goods Act of 1979 must pay a reasonable price for goods and this is not necessarily the sale price.

Unfortunately, this law depends on the supplier making enquiries as to the person’s actual requirements. It doesn’t apply to contracts of hire purchase, barter or contracts for the supply of services to the incapacitated person.

Testamentary capacity

A person can only make a will if s/he has the mental capacity to do so. Mental disorder does not of itself render a will void. Forgetfulness or confusion is not of itself enough to mean that a person does not have capacity, if s/he understands the nature and effect of the will. If no will is left, a person’s possessions are divided according to fixed legal rules. Anyone wishing to challenge the validity of a will can do so through the Court of Sessions. The onus is on the person contesting the will to prove that the grantor was not capable at the time of subscription. A guardian cannot make a will on behalf of a person with incapacity.

Civil responsibility

The law (in both Scotland and the rest of the UK) has little to say about the liabilities of people with incapacities for civil wrongs. Some general rules can, however, be stated.

The elements required to establish the particular civil wrong may not exist if the person has a serious mental disorder. If, for example, a particular mental element is required, such as malice or wilful recklessness, the person’s mental disorder may mean s/he is inca­pable of having such an intention and could not be held liable.

All civil wrongs require some mental element, or at the very least, a voluntary action. Thus, if the person was sleep walking or acting under a paranoid delusion, it would not be right to hold him/her liable. The test might be whether the person was able to appre­ciate the nature or wrongfulness of the conduct, as in the criminal law.

Some civil wrongs incur strict liability, meaning a person can be held liable regardless of his/her intentions. However, even in these cases, a person should not be held liable if s/ he lacked the mental capacity to commit a voluntary act.

Even where there is no liability for damages, Patrick and Killeen (2010) suggest that the court would retain the power to grant an order demanding that certain actions cease, for example, the publication of slander or loud music coming from the person’s house.

If the person is unable to take part in civil proceedings, the court will appoint someone to represent his/her interests.

Criminal responsibility

Under the Criminal Procedure (Scotland) Act 1995 s57 as amended by Mental Health (Care and Treatment) Scotland Act 2003 and Criminal Justice (Scotland) Act 2003, the court has a range of options when someone is acquitted because of ‘insanity’ or was not fit to plead and an examination of the facts decides the person committed the offence.

Options include a compulsion order authorising detention in hospital and welfare guardianship or welfare intervention order under the Adults with Incapacity (Scotland) Act 2000. This is only possible if the person has been found to be suffering from a mental disorder of a nature or degree which warrants his/her reception into guardianship, but is not possible in the case of a crime such as murder where the sentence is fixed by law. The court must be satisfied that this measure is the most suitable and is necessary for the welfare of the person. The court requires reports from two doctors (one of whom must be an approved medical practitioner under the Mental Health (Scotland) Act), con­firming that the grounds for the order apply to the person. The court requires a mental health officer to interview the person and prepare the report. It may require a report from a criminal justice social worker as well as this report. Where the adult has a mental disorder and is incapable of protecting his or her own welfare and that no other means are available are grounds for making a welfare guardianship order under the Adults with Incapacity (Scotland) Act 2000 and appointing the Chief Social Work Officer of the local authority as welfare guardian.

 

 
 

Last Updated: Thursday 09 February 2017

 

 
  • Acknowledgements

    This report received funding under an operating grant from the European Union’s Health Programme (2014-2020). The content of the Yearbook represents the views of the author only and is his/her sole responsibility; it cannot be considered to reflect the views of the European Commission and/or the Consumers, Health, Agriculture and Food Executive Agency or any other body of the European Union. The European Commission and the Agency do not accept any responsibility for use that may be made of the information it contains.
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