Date lodged: 22 September 2016
To ask the Scottish Government for what reason the Mental Health (Care and Treatment) (Scotland) Act 2003 does not contain a provision for appeal against a decision regarding incapacity, compared to the Adults with Incapacity (Scotland) Act 2000, which does contain such a provision.
Answered by: Maureen Watt 30 September 2016
There is not a test in the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) which results in patients being deemed incapable generally. A patient’s capacity to consent to treatment is assessed by experienced, specialist clinicians subject to the safeguards in Part 16 of the 2003 Act and having regard to guidance issued by the Mental Welfare Commission. Under the 2003 Act, judgements of capacity to consent are made in relation to the ability to consent to that treatment at that time.
The Millan report, which was the basis for the 2003 Act, noted that “there are differences between the typical situation which may arise under the Adults with Incapacity Act, and the use of mental health law. It may be easier to determine that a person with a long-standing condition such as learning disability or dementia does not have capacity, than in the case of someone with an acute mental illness, which may fluctuate above and below the capacity ‘threshold’. Even if incapacity can be established at a particular time, it would seem impractical for an order for compulsory treatment to stop and start if capacity fluctuates perhaps on a daily basis or even more frequently.”