Adults with Incapacity

Question 1

Who has capacity?

Answer 1

It is assumed everyone has capacity until proven otherwise - cant just look at someone and tell

Question 2

The adults with incapacity act aims to do what?

Answer 2

aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so.

Question 3

How is capacity defined?

Answer 3

Is defined as the ability to:

• receive impressions
• receive knowledge
• to do or understand something.

Question 4

What is capacity important for?

Answer 4

• Decision making - capacity is key to autonomy
• Everyone has the right to say what happens to their body
• Everyone also has the right to say what they don’t want to happen to their body
• In terms of healthcare, competent adults have the right to refuse treatment

Question 5

Failure to treat adults who do not have capacity may constitute what?

Answer 5

Negligence

Question 6

What is the legal definition of incapacity?

Answer 6

The inability to enter into legally binding contracts

Question 7

What does incapacity mean in terms of the AWI Act?

Answer 7

It means that the person is incapable of:
•	Acting 
•	Making decisions 
•	Communicating decisions 
•	Understanding decisions 
•	Retaining the memory of decisions

Question 8

Does a lack of ability of communication mean that a patient has incapacity?

Answer 8

No - as long as the deficiency in communication can be made good by human or mechanical aid

(iPad, hearing aid etc.)

Note: NEVER assume that someone can’t communicate from first glance.

Question 9

Is capacity and all or nothing scenario?

Answer 9

No

Question 10

What is residual capacity?

Answer 10

Having the capacity to consent to some things but not others

e.g. o E.g. a patient with a learning disability may understand that they need to go to the dentist because they have a sore tooth or need a check-up. However, they may not be able to understand why they need certain treatments relating to this.

Question 11

If you need a patient to demonstrate they have capacity, they should be able to what?

Answer 11

• Understand in simple language what the treatment is, its purpose and nature and why it is being proposed
• Understand its principal benefits, risks and alternatives;
• Understand in broad terms what will be the consequences of not receiving the proposed treatment
• Retain the information long enough to use it and weigh it in the balance in order to arrive at a decision (try leave for 24 hours)

Question 12

What are the 5 key principles of the AWI Scotland Act?

Answer 12

1. Treatment must benefit the patient
2. Minimum necessary intervention (to get the patient comfortable)
3. Take account of the wishes of the adult
4. Consultation with relevant others
   a. If you can’t figure out what the adult wants
   b. Ask friends, family etc – what happened in the past with dental treatment?
5. Encourage the adult to exercise ‘residual capacity’

Question 13

Principle 1 of the AWI Act is that the treatment must benefit the patient. How do you make sure that it benefits the patient in line with the act?

Answer 13

• Without the treatment that benefit would not be possible (and it will continue to get worse)
• Any intervention must improve or enhance their life (e.g. tooth out and can now eat)

Question 14

We need to take into account the wishes of the patient (both present and past). How can we do this if the patient isnt able to communicate these?

Answer 14

• Any relatives or close friends
• medics
• primary carer
• any guardian or welfare power of attorney

Question 15

What are the two different types of attorney’s?

Answer 15

• continuing power of attorney

- welfare power of attorney

Question 16

What can a continuing power of attorney make decisions regarding?

Answer 16

Financial affairs and property only (not medical)

Question 17

A welfare power of attorney can make decisions based on health and personal welfare. When do these powers come into effect and what must the attorney take into account?

Answer 17

Only come into effect when adult is incapable of decision making

Must take into account the adults wishes

Question 18

If a patient’s relative etc says they have welfare power of attorney, what do you have to do?

Answer 18

See the paperwork and check its the right one and check it covers dental treatment.

Question 19

What are guardianship orders?

Answer 19

Court appointed orders for people who have never had the capacity to consent

Gives the guardian continuous management of welfare and financial matters as well as the powers to deal with property, finance and martial affairs.

Question 20

So who can actually consent for dental treatment?

Answer 20

• Patients with capacity
• Welfare Power of Attorney
• Welfare Guardians
• Medical and Dental* practitioners under Section 47 of AWI Act (General Authority to Treat)
o *Only dental practitioners who have gone under specific training

Question 21

When liaising with a GP what should you provide them with?

Answer 21

Specific details of the treatment you want to carry out to avoid generalisation

Question 22

In an emergency situation, you can give treatment without consent. However, this is not clear cut in dentistry. What would be an example of an emergency for this situation?

Answer 22

a big bleed or spreading infection but ultimately each situation is a matter for clinical judgement

Question 23

What is the full name of the AWI Act?

Answer 23

Adults with Incapacity Scotland Act 2000

Question 24

What section of the adults with incapacity scotland act 2000 is the AWI in

Answer 24

Section 47 form

Question 25

What are two differences between a welfare guardian and a Welfare Power of Attorney?

Answer 25

• welfare power of attorney is appointed by the person themselves for when they don’t have capacity whereas guardianship is given when the person does not have capacity and therefore can’t appoint an Attorney
• guardianship is applied for through courts whereas a Welfare guardianship is dealt with by solicitors
• guardianship is for a fixed period of time (normally 3 years) whereas a power of attorney stays in force