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Adults with Incapacity

CommunicationMost people who suffer from a mental health disorder or learning disability retain the capacity to make some healthcare decisions for themselves. The capacity to reach a decision depends on the decision in question, the intellectual state of the patient at the time and the nature of the disorder. The Adults with Incapacity (Scotland) Act 2000 [1] and the Mental Health (Care and Treatment) (Scotland) Act 2003 [2] cover delivering healthcare to people who lack the capacity to make treatment decisions for themselves.

The Adults with Incapacity (Scotland) Act 2000 [1] defines incapacity as being incapable of acting; or making decisions; or communicating decisions or understanding decisions or retaining the memory of decisions. The cause of the incapacity must be a mental disorder or an inability to communicate because of a physical disability (unless the inability can be made good by human or mechanical aid).

Subsequent amendments detailed in the Smoking, Health and Social Care (Scotland) Act 2005 [3] allow an extended group of medical professionals, including dentists, to sign a Certificate of Incapacity (Section 47 Certificate) which gives authority to carry out treatment following completion of suitable training.

Allow the patient to exercise their right to consent whenever possible and to utilise any residual capacity they may have.

Give explanations or information in a way that is appropriate to the circumstances (e.g. language or visual aids).

If doubt exists about a patient’s understanding, capacity will need to be assessed. Contact a responsible relative or carer to discuss this.

Check if a Welfare Attorney (this may be a close relative) has been appointed to look after the patient’s interests and liaise with them before treatment. Note that a Certificate of Incapacity (Section 47 Certificate) will still be needed in such cases.

A suitably trained and qualified dentist can assess capacity and provide a Certificate of Incapacity (Section 47 Certificate) for dental treatment. Training is available from NHS Education for Scotland [4].

If a dentist is not suitably trained and qualified to issue a certificate, request that a doctor assess the patient and issue a certificate for dental treatment.

Be cautious about embarking on significant treatment (such as the extraction of the last few remaining teeth or front teeth) without input from relatives because complaints may arise, for example, visiting a family member to find that their teeth have been extracted without the relatives’ knowledge.

NB: NHS Inform [5] has produced a leaflet, Information for carers using NHS services for carers of adults (over 16 years) who are unable to make decisions for themselves. Consider making the information available at your practice.