In the first part of our blog series on the Adults with Incapacity Act (Scotland), we examined the background of the Act, and how it applies the terms ‘adult’ and ‘incapacity’ in context. In this week’s blog, we consider some of the AWI’s guiding principles, alongside the assessment process, and how it differs from the Mental Capacity Act as it applies south of the border.
Presuming capacity
Before we examine the principles in more detail, it is important to emphasise that the Adults with Incapacity Act (Scotland) presumes capacity to make a decision, and only applies to an individual if there is a medical justification and assessment to demonstrate incapacity.
Just like the MCA, the AWI is also decision specific, meaning that if someone is found to lack capacity for one particular decision, it does not follow that they lack capacity for another.
Principles of the AWI (Scotland)
The founding principles of the AWI can be found on the Scottish Government website, and are summarised as follows:
- Benefit – Any decision taken must benefit the adult for whom the decision is being made.
- Least restrictive option – Any action of decision should be the minimum necessary to achieve the intended purpose. It should restrict the person’s freedom as little as possible.
- Take account of the person’s views – Any decision should take into account the present and past wishes and feelings of the adult as far as they can be ascertained. The adult should be offered appropriate assistance to communicate their views.
- Consultation – Any decision should take into account the views of those closest to the adult and with the primary responsibility for their care.
- Inclusion / encouragement – Anyone exercising functions under the AWI should seek to include the adult to exercise whatever skills they have concerning property, financial affairs or personal welfare as the case may be.
One key difference here between the AWI and the Mental Capacity Act for England and Wales is that the AWI’s principles focus on incapacity only. This is quite different to the first three principles of the MCA, which start from the position of both presuming and promoting capacity. While both Acts have similar values at their core, they emphasise these values in different ways, and at different points in the Acts.
Interestingly, the AWI does not so much emphasize the individual’s right to make an ‘unwise decision’. While this point is included within the Act and its associated documents, it is not expressed to explicitly within the core principles.
The difference here would seem to be because the AWI is primarily directed that those already proven to lack capacity for a specific decision. As such, the immediate focus is more centred around the individual’s inclusion and rights.
Assessing capacity under the AWI
Alongside the AWI, the Scottish Government provides a detailed guide for social work and health care staff working within the Act. The guide covers how to assess capacity around specific decisions, and also considers many practical aspects of the Act in terms of supported decision making and unwise decisions.
A key difference between the AWI (Scotland) and the MCA (England and Wales) is that under the AWI, a mental capacity assessment must be completed by a trained professional. This is slightly different to the MCA, which provides a wider remit of assessment to allow for everyday decision-making and day-to-day care – even if it does recommend a professional assess capacity for decisions of greater or lasting impact.
From my own professional perspective, I note that there is no major reference within the AWI to those without a formal diagnosis. This means that a formal diagnosis must be determined prior to allowing for an assessment. It is also interesting to note that the AWI does not allow for the impact of a short-term condition affecting cognition, such as a Urinary Tract Infection (UTI).
Of particular interest is that there is no formal assessment as such under the AWI. Rather, there is the requirement to use the criteria of incapacity by determining:
- Does the person have a mental disorder or severe communication difficulty because of a physical disability?
- Has it made the person unable to make the decision(s) being addressed? (Note: this is the equivalent of the causative nexus / the justifying link)
- Is said person unable to make an independent decision, as he/she is incapable of any one of the following:
- Action (which addresses the topic of executive dysfunction)
- Making decisions (akin to ‘weighing up’ a decision, and implying the need to understand relevant information)
- Communicating
- Retaining the decision or making of said decision
In this way, there is a very striking resemblance to the Two Stage Test in its structure, implying the functional (point 3) and diagnostic (points 1 and 2) steps.
Conclusion
While there are many similarities between the Mental Capacity Act (England and Wales), and the Adults with Incapacity Act (Scotland), there are also some key differences – not least in terms of the way the Acts are set out and emphasise slightly different things. Though they are clearly different in many respects, the fundamental process for assessing capacity really is rather similar, with a similar emphasis on putting the individual at the centre of all decision making and supporting capacity wherever possible.
For further information on Mental Capacity Assessments, please do get in touch. We offer bespoke training to health and care professionals working under the MCA and related Acts. We can also carry out Mental Capacity Assessments for complex cases.