Substituted decision makers and the interaction between the Adults with Incapacity (Scotland) Act 2000 and Mental Health (Care and treatment) (Scotland) Act 2003 1
It is sometimes the case that separate pieces of legislation which, in some respects, cover similar issues, produce anomalies. This would appear to be the case with the Adults with Incapacity (Scotland) Act 2000 (‘the 2000 Act’) and the Mental Health (Care and Treatment) (Scotland) Act 2003 (‘the 2003 Act’) in the context of medical treatment for mental disorder and substituted decision-makers.
Substituted decision-makers and medical treatment for mental disorder
Section 47 of the 2000 Act (the general authority to treat) permits certain medical and healthcare professionals2 to issue a certificate authorising what is reasonable in the circumstances to medically treat an adult with incapacity in order to safeguard or promote their physical or mental health.3 Where there is an existing guardian or welfare attorney then they may legitimately consent to the proposed medical treatment on behalf of the adult 4 hospital for treatment of a mental disorder against their will.5 A second opinion procedure exists where the guardian or welfare attorney refuses to consent to the treatment but the doctor or healthcare professional still wishes that it be administered.6
Potential inconsistency between the 2000 Act and 2003 Acts
The general authority to treat is, however, also subject to, amongst others, sections 234, 237, 240and 242 of the 2003 Act.7 Sections 234-240 provide for medical treatments that are subject to special safeguards in terms of obtaining the patient’s consent, obtaining second medical opinion, the involvement of the Mental Welfare Commission and, in the case of neurosurgery, the Court of Session where the patient is incapable of giving valid consent or refuses to give consent. The special safeguarded treatments include neurosurgery,8 ECT9 and drugs (other than surgical hormone implant) to reduce sex drive, any other drugs given over a period of more than two months (although the 2003 Act special safeguards for such long term drug use do not apply to adults being treated under the 2000 Act10) and artificial nutrition.11
Section 242, on the other hand, relates to treatment for mental disorder other than that requiring special safeguards. However, where section 50 of the 2000 Act permits a substitute decision maker to consent to such treatments when administered under the 2000 Act, section 242 of the 2003 Act appears to provide no such ability. In essence, this therefore suggests that welfare attorneys or guardians may not be able to consent to medical treatment that they would be able to consent to under the 2000 Act were the adult not subject to compulsory care and treatment for their mental disorder under the 2003 Act.
It is questionable whether section 242 can be construed in such a way that would permit guardians or welfare attorneys to give consent despite the 2003 Act’s underlying general principles requiring that their views must be sought and taken into account when interventions are being considered. Indeed, one might well assume that it was the intention that they not be so authorised given that, even in the context of considering the views of others, section 242(5)(a) specifically directs that the views of the patient, their named person and any advance statement must be taken into account but throughout section 242 there is no express mention of guardians and welfare attorneys.
The denial of the right of substitute decision makers to consent to treatment for mental disorder must also be considered in human rights terms given the requirement that Scottish devolved legislation and its interpretation and implementation must be compatible with ECHR rights.12
Human rights considerations
The European Court of Human Rights has made it clear that treatment of an individual without consent may amount to a violation of that individual’s right to private life (autonomy) under Article 8(1) ECHR where there is no legal basis and it is not in pursuit of a legitimate aim.13 However, as yet, it has not been invited to directly address the issue of a substitute decision maker appointed by an individual consenting on that individual’s behalf to medical treatment for mental disorder.14
That being said, the appointment of a welfare attorney may nevertheless be regarded as an expression of such autonomy. For instance, whilst only persuasive and not legally binding, Council of Europe Recommendation of the Committee of Ministers to Member States Concerning the Protection of the Human Rights and Dignity of Persons with Mental Disorder15 advocates patient involvement, and respect for their opinions, in preparation of treatment plans is required wherever possible16 including in involuntary treatment situations.17 However, more specifically, Council of Europe Recommendation on principles concerning continuing powers of attorney and advance directives for incapacity18 promotes the use of powers of attorney and advance statements as an expression of self- determination and autonomy. This is said to build on the principles of subsidiarity and necessity in Council of Europe’s earlier Recommendation on principles concerning the legal protection of incapable adults19.
Both the 2000 and 2003 Acts largely address these requirements where they provide for seeking of views of the adult/patient and substitute decision makers and, in the case of the 2003 Act, those views expressed in advance statements when interventions are being considered. The 2000 Act also permits, under section 50, welfare attorneys to consent to some types of medical treatment. As already indicated, however, neither Act goes as far as recognising the right of welfare attorneys to consent to medical treatment for mental disorder in compulsory treatment situations.
UN Convention on the Rights of Persons with Disabilities (CRPD)
Further potential interpretational considerations also arise in connection with the CRPD. Whilst the scope of this paper does not allow for an extensive discussion of this topic, it should be noted that several commentators20 and, indeed, the Committee on the Rights of Persons with
Disabilities in its recent Draft General Comment on Article 12 of the Convention – Equal Recognition before the Law21 appear to adopt a radical interpretation of the Convention in its shift away from the traditional paternalistic medical model approach to disability towards a full embracement
of a social, facilitating, model. In essence, such an interpretation, referring in particular to articles 5 (equality and non-discrimination), 12 (equal recognition before the law), 14 (liberty) and 25 (the right to health), advocates no removal of legal capacity on the basis of disability, strongly promotes supported (not substituted) decision making (and the removal, therefore, of guardianship) and the abolition of laws providing for the compulsory treatment of mental disorder.
An absence of clear direction from Strasbourg on Article 8 in this context, together with the somewhat ambiguous wording of section 242, it is difficult to assess with any certainty whether or not this section violates Article 8 thus rendering it an invalid and unenforceable statutory provision.22
How the CRPD will ultimately be applied in the context of medical treatment for mental disorder is still to be determined. If this interpretation is to be strictly adhered to then this may well, of course, render the issue of the ability of substitute decision makers to consent to treatment for mental disorder under the 2003 Act irrelevant.23
Whether the Scottish Government will address this inconsistency in its forthcoming Mental Health Bill remains to be seen. Meanwhile, it would appear that direction should be sought from the Sheriff Court24 where situations arise involving the interpretation of section 242 of the 2003 Act and substitute decision makers authorised under the 2000 Act. Alternatively, the Mental Health Tribunal may be prepared to direct that a guardian’s or welfare attorney’s authority to consent to treatment in these circumstances is a recorded matter. There is, however, support for the view that where compulsory treatment for mental disorder is concerned then the provisions of the 2003 Act take precedence over the 2000 Act.25
Dr Jill Stavert is Reader in Law within the School of Accounting, Financial Services and Law at Edinburgh Napier University and Director of its Centre for Mental Health and Incapacity Law Rights and Policy. Jill is also a member of the Law Society for Scotland’s Mental Health and Disability Sub-Committee, Alzheimer Scotland’s Human Rights and Public Policy Committee, the South East Scotland Research Ethics Committee 1, and the Scottish Human Rights Commission Research Advisory Group. She has undertaken work for the Mental Welfare Commission for Scotland (including its 2013 updated guidance on Deprivation of Liberty) and is a voluntary legal officer for the Scottish Association for Mental Health.