Adults with Incapacity Seminar Monday 30 November 2009 and Tuesday 01 December 2009
ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000
POWERS OF ATTORNEY The introduction of the Adults with Incapacity (Scotland) Act 2000 coupled with the increase in the number of individuals suffering from illnesses such as dementia and Alzheimer’s disease means that Powers of Attorney have become a much more talked about issue with more people than ever utilising the terms of the legislation to put such documents in place.
That said, the number of individuals who have put such documents in place remains in the minority and a large number of people still find themselves in a position where they are unable to look after their own affairs and have not appointed an appropriate person to do so on their behalf. This means family members often have to look after a loved one who has become ill or incapacitated and find they are unable to deal fully with the individual’s affairs. The simple act of even accessing the individual’s bank account can sometimes seem almost impossible. They may find they are unable to speak to a utility provider, as the account is in the name of the relative who has become ill or incapacitated, and they are then unable to deal with gas and electricity bills etc.
Where an illness is severe enough that the individual has to move into long term residential care then the difficulties escalate as family members are unable to take any action in relation to the house that has been left unoccupied and perhaps more importantly find they may not be able to be involved in decisions involving the actual care of their loved one. These and similar situations can easily be avoided if each individual puts Power of Attorney documents in place.
If someone wishes to confer a Power of Attorney they are able to do so and the Adults with Incapacity (Scotland) Act 2000 regulates the method by which this is done. There are two types of document, the first one being a Continuing Power of Attorney. This gives the appointed attorney the power to deal with all financial aspects of the grantor’s affairs.
As such, the attorney can deal with all household bills, property matters, bank accounts,
pensions, investments etc. A continuing Power of Attorney can, once registered, be used but should the grantor only wish these powers to be used in the future then a Springing Continuing Power of Attorney is granted. This means the powers will only spring into effect when capacity is lost, or if the deed dictates, on some other trigger event such as the grantor stating in writing that he or she want the powers to be operative.
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The second type of document is one which enables someone to appoint an attorney to deal with ones welfare issues. These cover areas such as medical treatment, health care, residence etc. Welfare Powers of Attorney documents will only have effect in the event of the grantor losing capacity.
The process of putting in place Powers of Attorney usually involves a Solicitor and the Solicitor after consultation with the grantor will draft appropriate documents in line with the grantors wishes. As the Powers of Attorney give authority to another person to act on ones behalf, the grantor has to be very sure of the person or persons who he or she appoints to make sure that his or her wishes are respected and carried out. The document themselves are laid out in a prescribed form and there is a certificate at the end of the document that has to be signed by a medical practitioner or a solicitor. In signing the certificate the doctor or solicitor states that he or she has interviewed the grantor immediately prior to the signing of the document and that they are satisfied that the grantor fully understands the nature of the powers being given and the extent of them. As such, the doctor or solicitor is implying that they have no reason to believe that the grantor is acting under any influence. If the doctor or solicitor does not feel they have sufficient knowledge of the grantor to sign the certificate they can consult other persons who know the grantor and in this case the individuals who have been consulted by the doctor or solicitor should be referred to in the certificate.
WHEN SHOULD POWERS OF ATTORNEY BE PUT IN PLACE? The simple answer to this question is immediately. One should not delay in putting such documents in place assuming that it is something that only elderly people do or that their health is fine and only if that changes will they consider putting Powers of Attorney in place. Illness can strike at any time and can strike very suddenly and accidents can happen which leave an individual incapacitated so in an ideal world everyone would have their Power of Attorney already in place. Then, in the event something unforeseen happened there would be a seamless assumption of position by the Attorney.
These documents are not set in stone and can be revoked
and attorneys replaced as circumstances change.
CAPACITY As the grantor has to completely understand the nature of the Powers of Attorney when they are put in place, the issue of capacity is of upmost importance. The recurring theme of “I will put these in place if I feel I need them down the line� is a most worrying aspect in relation to the granting of a Power of Attorney. If someone realises they are becoming forgetful or suffering from any form of illness affecting their grasp of day to day matters, then there is always the concern that should they decide to put a Power of Attorney in place they may already have lost capacity to do so. Anyone who comes in contact with patients on a day to day basis should mention Powers of Attorney in a general way and explain why it is worth putting them in place at the earliest opportunity. If one is in contact with patients who show signs of forgetfulness or frailty then perhaps there is a greater onus to mention Powers of Attorney to these patients and if appropriate, to their family. Having a Power of Attorney in place can eliminate a large amount of stress and inconvenience at a late date.
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THE ATTORNEY APPOINTED In dealing with a patient’s family and in particular the individual who has been appointed as Attorney a few points should be noted. •
When a Power of Attorney is granted then under the new Act it should be registered with the Office of the Public Guardian and indeed has to be so registered before it can ever be used.
•
As part of the registration process the individual or individuals being appointed as Attorney have to sign the registration form. This confirms that they are aware that the document has been put in place and that they are happy to act as Attorney. This means that should someone become ill or lose capacity the person they have appointed to look after their affairs will be aware that such powers have been granted and they will be able to step forward and assume the position of Attorney.
•
Once registered a copy is sent to the grantor and the Attorney. The copy of the power has official status and is authenticated by the Public Guardian.
•
If presented with a Power of Attorney by a family member in relation to a patient and the doctor or carer is not satisfied that the document has been properly executed or registered then they are entitled to ask for the original document or contact the Office of the Public Guardian to ensure the registration process has been duly completed.
EXERCISING THE POWER OF ATTORNEY With regard to exercising the Power of Attorney itself, there has never been a great deal of law on this and the new Act did not really change that a great deal. In theory, once the document has been registered things should proceed without the need for further bureaucratic involvement and normally in practice this is the case.
The Act does contain codes of practice for Continuing and Welfare Attorneys and these act as a guidance and more importantly as a protection for the attorney from problems in the future. Basically an attorney is akin to an agent and the overriding principle is that the attorney owes a duty of care to the adult with incapacity. The Attorney must act with due skill and care in exercising the powers they have been given in relation to the adult. A professional person acting as agent must demonstrate the skill and care that would be expected of a reasonably competent member of that profession.
Generally the attorney is in a position of trust with respect to the matters covered by the powers conferred. The adult has placed trust in the attorney to exercise the powers properly. The Attorney should consult with relatives, carers and medical professionals to ensure that all decisions taken are in the best interest of the adult. The attorney should be someone who will be able to take account of the adults present and past feelings and wishes so far as they can be ascertained and has a duty to continue to ask the adult about his or her feelings even after the attorney has started to exercise their powers.
This is where enlisting the help of others who know the adult and who are trusted by the adult will be helpful. The GP, the Social Worker, the Community Worker, the Clergy and carers may be able to help in facilitating discussions with the adult to ascertain if they have any expressed views on a particular matter. They will be able to help the attorney to explain the matter to the adult and seek the adults’ views. What must be borne in mind by
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such interviewers is that they have to be careful that they are helping to communicate the adults’ views without imposing their own.
Generally, it may be in relation to a Welfare Power of Attorney that GP’s and care home staff are consulted. GP’s and care home staff who look after the adult on a day to day basis are of course well placed to discuss with the attorney medical issues, whether the adult is fit to go on holiday, their overall appearance, visits from clergy, access to social events, meals etc. The Attorney will have to take on board that such specialist advice may be required in relation to some welfare aspects.
As you may have gathered there are no hard and fast rules as to how a Power of Attorney may be exercised. The underlying principal is that all actions must be taken in the best interest of the adult and in exercising the powers on a day to day basis the attorney will, no doubt, seek advice and support from those involved in the day to day care of the adult.
The medical profession will often be involved in assisting individuals in deciding whether Powers of Attorney should be put in place or indeed suggesting that they should. GP’s will no doubt be consulted as to whether the grantor of a Power of Attorney has lost capacity and be asked to provide a report to that effect and finally they will no doubt be involved in the exercise of the attorneys duties on an ongoing basis.
THE POWER OF ATTORNEY DOCUMENT The Power of Attorney document requires to be signed by the grantor and the signature has to be witnessed. A solicitor or GP has to complete the attached certificate confirming they are satisfied that the individual has the capacity to grant the document and is fully aware of its implications.
While the person witnessing the grantor’s signature on the document itself does not have to be the same individual certifying the document, the certificate assumes and indeed insists that the person completing the certification has interviewed the grantor immediately prior to their signing of the document. If the person certifying the document is not the same person witnessing it, both entries must show the same dates.
While perhaps an obvious point, it should be noted that if a medical practitioner is signing the certificate they must be currently registered with the General Medical Council and at the risk of completely stating the obvious it should be noted that if the GP is being appointed as Attorney they cannot certify the document. Finally if you are appointed as an Attorney you must notify the Office of the Public Guardian upon a change of address as they need to keep their records up to date.
CONCLUSION
As you will see putting a Power of Attorney in place is very straightforward and once in place gives the reassurance that should the grantor require assistance later in life then the person able to act on their behalf is someone they have chosen and can do so without a lengthy and costly application to the Sheriff Court.
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ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 Options available for dealing with the affairs of incapable adults Recent headlines such as “Scots elderly population set to double in the next 25 years” 1 and “Over 1 million Britons will suffer from Dementia within 30 years” 2 draw our attention to the increasing number of individuals who fall within the ambit of the Adults with Incapacity (Scotland) 2000. This leads us to consider the various options available for dealing with the affairs of incapable adults. I will look briefly at 5 such options, with a specific emphasis on the implications for medical practitioners and care providers. 1. GUARDIANSHIP ORDER This involves an application to the Sheriff Court and is the most restrictive option available under the 2000 Act. This means the Sheriff must be satisfied that no other means available under the Act is sufficient to meet the Adult’s needs. In other words, a Guardianship Order should only be sought where the Adult has complex property/financial arrangements or complex welfare needs. For example, a Guardianship Order should not be sought where the Adult has one or two relatively small bank accounts or where the Adult requires relatively minor medical treatment. As anyone involved in obtaining a Guardianship Order will affirm, the process is rather complex. Whilst the legal procedure in terms of the Act is relatively simple in theory, the requirement for various Medical Reports and Social Work Reports together with the need for a detailed legal petition (known as a “Summary Application”) ensure that the process is often lengthy (and costly) for the Adult and their relatives. As an aside, I should point out that one of the most frustrating aspects in this area is the fact that Guardianship Orders and Powers of Attorney have more or less the same end result. In other words, the powers conferred upon an Attorney are almost identical to the powers conferred upon a Guardian. The main difference, in practice, between Guardianships and Powers of Attorney is the cost and time it takes to implement both. In my experience, Powers of Attorney can be put in place in a very short time frame (possibly 1 day) whereas Guardianship Orders usually involve a minimum time frame of 3 months and, more likely, nearer 6 months. Similarly, Powers of Attorney usually cost somewhere in the region of £250 to £400 whereas Guardianship Orders cost £3,000 on average (extending to anything up to £8,000 where the Adult’s affairs or circumstances are very complicated).
Having mentioned that the legal procedure is relatively complex, I do not intend to discuss the procedure in detail. Instead, I will focus on the role of the medical practitioner in the Guardianship process and what they might wish to consider if approached to complete a medical certificate in support of a Guardianship application. Role of Medical Practitioner 1 2
Glasgow Herald, 22 October 2009 Daily Mail, 22 October 2009
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By way of background, it should be noted that a Guardianship application involves the submission of 4 separate documents to the Sheriff Court. The first document is the Summary Application - this is a legal document comprising five or more pages which details the powers being sought, the nature of the Adult’s financial and/or welfare needs and why the powers being sought are necessary in order to deal with the Adult’s affairs. The Summary Application must be accompanied by 3 Reports, 2 of which must be prepared by medical practitioners (and details of which will follow shortly). The person responsible for preparing the 3rd Report will depend upon the type of Guardianship being sought. If welfare powers are sought then the 3rd Report will (in most cases) be prepared by a Mental Health Officer. 3 If the Guardianship relates solely to the Adult’s financial and/or property affairs, the 3rd Report will be prepared by an individual with sufficient knowledge of the Adult and the Guardian to report on the suitability of the proposed Guardian and the appropriateness of the order being sought. As with most Court procedures, there is a strict time limit which must be observed in relation to the submission of the Summary Application and supplementary Reports. Essentially, all of the documents must be submitted to Court within 30 days of completion of the first Report and so great care must be taken to ensure that all the relevant parties are aware of the strict timescales involved. Medical Reports Turning then to the Medical Reports which require to be completed it should be noted that, where the Adult’s incapacity relates to a “mental disorder” 4 , one of the two Reports must be prepared by a Section 22 approved practitioner 5 . Essentially, this is a medical practitioner who is approved by the Health Board as having special expertise in the diagnosis and treatment of mental disorders. If you as a medical practitioner are requested to complete a Medical Certificate in support of a Guardianship application, the first thing to note is that there is no compulsion upon you to do so.
As mentioned previously, the 2000 Act provides that a Mental Health Officer’s Report must be produced within 21 days of notice being given to the Chief Social Worker of the proposed application. There is no equivalent provision in the Act in relation to the completion of a Medical Certificate and so, other than the argument that a medical practitioner possibly owes an ethical duty to his patient to do so, it would seem that there is no compulsion upon the medical practitioner to complete the requested Certificate. If the medical practitioner does, however, wish to complete the Medical Certificate in relation to a Guardianship application, he must complete the Certificate in prescribed form following an examination and assessment of the Adult. A completed version of the Medical certificate is enclosed with this handout for reference.
3
The application must be notified to the Chief Social Work Officer, who will appoint a Mental Health Officer to produce a Report within 21 days of the initial notification. 4 For the purposes of the 2000 Act, a “mental disorder” includes either a mental illness (such as schizophrenia, dementia, obsessive compulsive disorder etc) or a mental handicap (such as learning disability, cerebral palsy etc). 5 Reference here is, of course, to Section 22 of the Mental Health (Care and Treatment)(Scotland) Act 2003.
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The Medical Certificate is relatively straightforward and involves 3 main elements:(a) The medical practitioner must detail the nature of the Adult’s incapacity and how this affects their ability to administer their own property, financial or welfare affairs. (b) The medical practitioner must comment upon the likely duration of the Adult’s incapacity. This is because a Guardianship Order will last for 3 years unless the Sheriff is satisfied that this should be increased on cause shown. In light of this, where the Adult’s incapacity is likely to remain permanent, this fact should be clearly detailed in the Medical Certificate.
(c) Finally, the medical practitioner must detail the extent to which he has been able to communicate with the Adult, their nearest relative and their primary carer in relation to the proposed Guardianship. This is to ensure that the Sheriff is fully aware of any particular views of the Adult and those interested in their affairs in relation to the proposed Order. Another aspect of the legal procedure in which medical practitioners have an interest is the notification of the Hearing date on all “relevant persons”. In terms of the 2000 Act, all relevant persons must be notified of the date upon which the Court Hearing is to take place, thus affording them an opportunity to either attend the Court or, alternatively, to object to the proposed Guardianship. “Relevant persons” for these purposes include bodies such as the Office of the Public Guardian, the Mental Welfare Commission, the Social Work Department and so on, but also include the Adult’s relatives and, of course, the Adult himself.
Notifying the Adult of the proposed application could, in some circumstances, be inappropriate. Indeed, if notification upon the adult poses a serious health risk to him, this should be detailed in the Medical Certificate in order to allow the Sheriff to dispense with the requirement to notify the application on the Adult.
2. INTERVENTION ORDER Like a Guardianship Order, this involves an application to the Sheriff Court. The legal procedure is almost identical to obtaining a Guardianship Order, the main difference being that an Intervention Order will authorise the Intervener to deal with one specific aspect of the Adult’s financial or welfare affairs (e.g. sell the Adult’s house) rather than allowing them to manage the Adult’s affairs in a general way.
Whilst this can be helpful (and slightly more cost effective) in limited circumstances, it is my experience that Guardianship Orders are far more useful in dealing with the affairs of incapable Adults and so I do not propose to discuss Intervention Orders in detail.
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3. AUTHORITY TO INTROMIT WITH FUNDS This is a process whereby an individual applies to the Office of the Public Guardian (as opposed to the Sheriff Court) for authority to transfer funds from the Adult’s bank account to their own bank account and then uses that money to pay for certain items or services for the Adult’s behalf. It should be noted that this procedure cannot be used by a nursing home manager to deal with a resident’s bank account (although more will follow on the powers available to nursing home managers shortly).
Authority to Intromit with Funds offers a simple and inexpensive alternative to Guardianship Orders where the Adult’s affairs are relatively simple. The application process itself is much simpler, although a Medical Certificate still requires to be submitted to the Office of the Public Guardian.
4. MANAGING RESIDENTS’ AFFAIRS Part 4 of the 2000 Act allows the manager of an “authorised establishment” 6 to apply to their Supervisory Body 7 for authority to deal with the affairs of a resident 8 . For the avoidance of doubt, this only applies where no Attorney or Guardian has been appointed to deal with the Adult’s affairs. As mentioned, section 37 of the 2000 Act allows a manager of an authorised establishment to “manage a resident’s affairs”, but what does this actually mean in practice? Does the manager have full authority to deal with all aspects of the resident’s property and welfare affairs in the same way as an Attorney or a Guardian? No, is the short answer. The power to manage a resident’s affairs in terms of section 37 is limited to claiming, receiving, holding and spending any pension, state benefit or other money to which the resident is entitled (e.g. dividend income). 9 It also allows the manager to deal with, and dispose of, the resident’s moveable property 10 but regard must be had to any sentimental value of such property.
The procedure to obtain this authority is relatively complex and involves 5 steps:-
1.
The manager must intimate to the resident and their nearest relative that he intends to instruct a medical practitioner to carry out a medical examination of the resident. 11
2.
The resident is then examined by a medical practitioner, who cannot be related to the resident (or the manager) and cannot have a direct or indirect financial interest in the authorised establishment.
3.
If the medical practitioner is of the opinion that the resident is incapable of dealing with his own affairs, a Medical Certificate in prescribed form is issued to that effect. The Medical Certificate will expire after 3 years.
6
This term is defined in the 2000 Act and includes, amongst other things, care homes and NHS hospitals. In the case of a nursing home the relevant supervisory body would be the Care Commission whereas the supervisory body for an NHS hospital would be the local Health Board. 8 For the purposes of the 2000 Act, a “resident” means an individual whose ordinary or main residence is within the establishment. In light of this, a resident would not include someone admitted to hospital for a short period of time. 9 At present, the Care Commission has limited this to assets with a value of less than £10,000 per year, although this can be increased on grounds shown. 10 Roughly speaking, any property except land or buildings. 11 The Supervisory Body can, however, dispense with this intimation if it would pose a serious health risk to the Adult. 7
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4.
The manager must then send the Medical Certificate to the resident, their nearest relative and the Supervisory Body. At this stage, the manager must notify the resident, their nearest relative and the Supervisory Body of (a) the alternative courses of action which were considered and why these were deemed inappropriate and (b) the fact that they now intend to manage the resident’s affairs.
5.
The manager then manages the resident’s affairs. The Medical Certificate itself is the document which confers the authority to act so there is no requirement for the Supervisory Body to issue a Certificate of Authority or similar document.
Managers appointed in terms of section 37 have a number of legal duties under the 2000 Act and I will touch upon some of these now. (a) The manager must spend the resident’s funds on items or services which will benefit the resident. This expressly excludes any items or services which would normally form part of the services provided by the establishment to the resident, meaning that care fees cannot be paid from the resident’s income. (b) The manager must keep the resident’s funds separate from the funds of the establishment and any cash over £500 held on the resident’s behalf must receive interest. (c) The manager must keep full records of all transactions and must produce details of any such transactions (and a note of the balance held) to the resident and/or their relatives if requested to do so. (d) The manager must claim all pensions, benefits etc to which the resident is entitled. (e) The manager must indemnify the resident for any loss incurred by them whilst managing the resident’s affairs. Residents’ Bank Accounts As mentioned, section 37 deals with the management of pensions, benefits and other income to which the resident is entitled. This, however, raises the question as to whether a manager can deal with or make withdrawals from the resident’s own bank account. Section 42 does indeed allow a manager of an authorised establishment to apply to their Supervisory Body for a Certificate authorising them to withdraw a specified sum from the resident’s bank account for a particular purpose. This application must be in writing and must nominate the person(s) who will be entitled to deal with the resident’s account. Interestingly, there is no need for the manager to notify this application to the resident or their nearest relative and so this procedure would appear to lack some of the safeguards necessary to protect the rights and interests of the resident. However, it is worth bearing in mind that any authority conferred by the 2000 Act must be carried out in light of the Act’s general principles and so it would be necessary for the manager to take into account the past and present wishes of the Adult and their nearest relative (and make reasonable attempts to seek these views).
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5. MEDICAL TREATMENT Medical practitioners are only too aware of the importance of ensuring that their patient consents to the course of treatment being proposed. Indeed, failure to obtain the necessary consent of a patient could result in a charge of assault against the medical practitioner. This question of consent becomes much more difficult where the Adult involved is incapable of making decisions in relation to medical treatment as a result of a mental disorder or an inability to communicate. It is my understanding that, historically, the practice in such a situation was for the medical practitioner to obtain the consent of a relative or “next-of-kin” of the Adult to the proposed course of treatment. Whether or not this was (or is) the case, this practice is clearly inappropriate and no longer sufficient to satisfy the terms of the 2000 Act a medical practitioner must either have the consent of the Adult or the consent of an individual legally authorised in terms of the 2000 AWI Act (such as an Attorney or Guardian) before proceeding with the proposed course of treatment. Where there is no Attorney/Guardian Having said that, section 47 of the 2000 Act allows the medical practitioner who is primarily responsible for the treatment of an incapable Adult to issue a Certificate in prescribed form to the effect that the Adult is incapable of making decisions in relation to the proposed course of treatment. 12 The medical practitioner who issues this Certificate then has the authority to do what is “reasonable in the circumstances” to safeguard or promote the physical or mental health of the Adult. 13 Section 47 Certificates last for 1 year, although Certificates lasting for 3 years can be prescribed in certain circumstances. 14 In any event, it is possible for the medical practitioner to issue successive Certificates (assuming, of course, that the Adult remains incapable of making decisions upon expiry of the initial Certificate). Section 47 cannot, however, be used in certain circumstances such as:(a) where the proposed course of treatment involves the use of force/detention (unless immediately necessary). (b) where the actions of the medical practitioner would be inconsistent with the decision of a competent court. (c) where the proposed course of treatment involves placing the Adult in a hospital for the treatment of a mental disorder against his will.
12
In this section, “medical treatment” simply means any procedure or course of treatment which is designed to safeguard or promote the physical or mental health of the Adult (and, as such, would include surgery, examinations of the Adult and issuing prescriptions right through to dental and optical treatment). 13 The Certificate may also authorise other persons to carry out the proposed course of treatment (e.g. a colleague or even a non-medical practitioner). 14 The Adults with Incapacity (Conditions and Circumstances Applicable to Three Year Medical Treatment Certificates) (Scotland) Regulations 2007 allow for Certificates to last to up to 3 years where the Adult suffers from (a) a severe or profound learning disability, (b) dementia, or (c) a severe neurological disorder.
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(d) where the proposed course of treatment is expressly disapplied by regulations issued by Scottish Ministers. 15 Disagreement with Attorney/Guardian As mentioned, section 47 only applies where no Guardian or Attorney has been appointed in relation to the Adult’s affairs. If a Guardian or Attorney has been appointed, there is always the possibility that the medical practitioner and the Attorney/Guardian disagree as to the most appropriate course of action to be taken. The 2000 Act anticipates that such disagreement may take place and seeks to make provision for the resolution of any such difficulties. In terms of section 50 of the Act, where a medical practitioner proposes that a certain course of treatment should be given to the Adult but the Attorney or Guardian refuses their consent, the medical practitioner may request that the Mental Welfare Commission nominate an independent practitioner to give his opinion as to appropriateness of the proposed treatment. If the nominated practitioner feels that the proposed course of treatment is appropriate in the circumstances, he will issue a Certificate to that effect and the treatment is then authorised despite the Attorney or Guardian’s refusal. The Attorney or Guardian may, of course, appeal to the Court of Session. 16 This is why it remains vitally important for medical practitioners to ensure that everyone who has an interest in the Adult’s affairs (including the Adult!) has an opportunity to express their views as to the proposed course of treatment. Finally, I should possibly mention for the avoidance of doubt that the doctrine of “necessity” still applies to the treatment of incapable Adults. In other words, medical practitioners are still authorised to carry out emergency treatment on an Adult who is unable to consent where it would pose a serious risk to delay that treatment in order to establish whether a Guardian or Attorney is in place. CONCLUSION As you will see, there are a number of procedures which enable the affairs of incapable Adults to be administered. In the main, however, these procedures are rather complex, particularly in comparison with “preventative measures” such Powers of Attorney. Hopefully this reinforces one of the main purposes of today’s Seminar, which is to highlight once again that “prevention is better than the cure”.
15
For example, the Adults with Incapacity (Specified Medical Treatments)(Scotland) Regulations 2002 specifically exclude from section 47 such procedures as sterilisation, electro-convulsive therapy and abortion. 16 It is also worth bearing in mind that, even where the medical practitioner and the Attorney/Guardian agree as to the proposed course of treatment, a relative of the Adult or anyone else with an interest in the Adult’s welfare could raise a court action at the Court of Session challenging the proposed course of treatment.
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