Adults with Incapacity Flashcards
At what age does a person in Scottish law gain the ability to make legally binding decisions for themselves, and what are the implications for dental treatment?
16
When assessing capacity, explain what is meant by “capacity is decision specific” and why it is described as “not all or nothing.”
Capacity is decision specific means that capacity must be assessed for each individual decision rather than globally. It is not “all or nothing” because a person may have capacity to make some decisions but not others, depending on their complexity. For example, a person might have capacity to consent to a dental examination but not to comprehensive care under general anesthesia.
What does the acronym AMCUR represent in the context of assessing incapacity, and how would you apply it when evaluating a patient’s ability to consent to dental treatment?
AMCUR stands for being incapable of: Acting, Making a decision, Communicating a decision, Understanding a decision, and Retaining the memory of a decision.
Identify at least five conditions that, on their own, do NOT constitute grounds for determining that an adult has impaired capacity.
They are in care
They have a mental health condition
They have difficulties with speech or writing
They have addiction issues
They have a brain injury
They have a physical disability
They are in prison
They have a neurological condition
They are not behaving rationally
They disagree with the practitioner
Compare and contrast the two main categories of individuals who may not have capacity according to the lecture.
The two main categories are:
Patients with a “mental disorder” - including mental illness, learning disability, dementia, acquired brain injury, or autistic spectrum disorder.
Patients who cannot communicate due to a physical disorder even with assistance - such as locked-in syndrome or unconsciousness following an accident.
The key difference is that the first category relates to cognitive/mental function while the second relates to physical inability to communicate despite potentially intact cognitive abilities.
Critically analyze the five key principles that underpin the Adults with Incapacity (Scotland) Act 2000 and explain how they might conflict in a dental scenario.
- Benefit - Any action must benefit the adult
- Minimum necessary intervention - Action should restrict freedom as little as possible
- Take account of the wishes of the adult - Consider present and past preferences
- Consultation with relevant others - Involve those who know the patient well
- Encourage residual capacity - Help the patient make decisions they are capable of
These principles might conflict in a dental scenario when, for example, the minimum intervention (principle 2) might be extraction of a painful tooth, but the patient’s past wishes (principle 3) indicate they valued keeping their natural teeth. Or when family members consulted (principle 4) advocate for treatment that doesn’t necessarily provide benefit (principle 1) to the patient, such as requesting extraction of stained but healthy teeth for aesthetic reasons.
Given a scenario where Betty, an 89-year-old with advanced dementia, has stained but sound upper incisors and her family requests their extraction for aesthetic reasons, apply the “benefit” principle and explain your decision.
The “benefit” principle requires that any action taken must benefit the adult and only be taken when that benefit cannot reasonably be achieved without it. In Betty’s case, extracting sound teeth would not provide a medical benefit to her - it would be purely for aesthetic reasons that appear to concern the family rather than Betty. Since healthy teeth contribute to function and extraction carries risks, removing them would likely not satisfy the benefit principle. The correct decision would be to refuse the extraction request as it does not benefit Betty herself.
Explain the legal perspective on communication difficulties in relation to capacity assessment, and describe at least four strategies to maximize communication with patients who have communication challenges.
Legally, “A person CANNOT be considered to be lacking capacity because of a lack or deficiency in communication – if that lack or deficiency can be made good by human or mechanical aid.” There is an obligation on professionals to support individuals with communication difficulties to maximize their communication.
Strategies include:
Finding out how the person normally communicates (asking them or their carers)
Ensuring they have their normal communication aids available
Creating a quiet, well-lit environment for communication
Allowing adequate time for communication
Using technology such as loop systems, spelling boards, or tablets
Considering communication adjuncts appropriate to their needs
Compare and contrast the different types of Power of Attorney and Guardianship Orders, specifically analyzing which can consent for dental treatment.
what are key differences
Powers of Attorney:
- Continuing (Financial) Power of Attorney: Covers only financial affairs and property. CANNOT consent for dental treatment.
- Welfare Power of Attorney: Covers welfare decisions including healthcare. CAN consent for dental treatment. Only activates when the adult loses capacity.
- Combined Power of Attorney: Covers both welfare and financial decisions. CAN consent for dental treatment.
Guardianship Orders:
- Welfare Guardian: Court-appointed after the adult has lost capacity. CAN consent for dental treatment.
- Financial Guardian: Only covers financial matters. CANNOT consent for dental treatment.
Key differences: Powers of Attorney are appointed while the person has capacity; Guardianship Orders are court-appointed after capacity is lost. Powers of Attorney typically have no expiry date, while Guardianship Orders are usually for three years.
Critically assess who can legally consent for dental treatment for an adult without capacity, and explain a common misconception among dental professionals regarding family members’ authority.
The following can legally consent for dental treatment for an adult without capacity:
- Welfare Powers of Attorney
- Welfare Guardians
- Medical & Dental practitioners under Section 47 of AWI Act (General Authority to Treat)
A common misconception is that any close relative can provide consent. However, relatives who are NOT welfare powers of attorney or welfare guardians CANNOT legally consent on another adult’s behalf, regardless of their relationship to the patient.
Explain the historical context that necessitated the “General Authority to Treat” provision in the Adults with Incapacity Act, and analyze its impact on dental care for adults without capacity.
Prior to the AWI Act (2000), treatment without patient or proxy consent could only be given in emergency situations. This created a significant gap for large numbers of adults who were incapable of consenting but did not have a proxy decision maker. Since most dental treatment does not constitute “emergency” treatment, there was effectively no legal basis for providing routine dental care to these vulnerable individuals.
The “General Authority to Treat” provision addressed this gap by allowing treatment when a valid certificate of incapacity is issued and the principles of the Act are observed. This has significantly improved access to dental care for adults without capacity, allowing them to receive necessary non-emergency treatment that would previously have been legally problematic.
Who can issue Certificates of Incapacity under the Adults with Incapacity Act, and what specific restrictions apply to dental practitioners issuing these certificates?
Certificates of Incapacity can be issued by:
- Medical practitioners primarily responsible for the patient’s care (GMP)
- Consultants in charge of the patient’s care
- Dental practitioners*
- Registered nurses*
- Optometrists*
Restrictions that apply to dental practitioners:
A dentist can only authorize dental treatment (certificates are only valid for their area of practice)
A dentist can only complete a section 47 form if they have completed the required training
Even if the patient has an appointed proxy, a Certificate of Incapacity MUST still be completed
Analyze the intersection of the Adults with Incapacity Act and common law regarding emergency treatment, providing specific examples of dental emergencies where treatment might proceed without formal capacity assessment.
Common law allows necessary medical treatment in emergencies for patients who cannot consent when needed to safeguard a person who would otherwise come to significant harm. This exists alongside the AWI Act provisions.
Dental emergencies where treatment might proceed without formal capacity assessment include:
- Uncontrolled bleeding from a dental extraction site
- Severe facial swelling from odontogenic infection that threatens airway
- Dental trauma with risk of aspiration of tooth fragments
- Acute dental pain causing severe distress when immediate relief is needed
- Ludwig’s angina or other spreading fascial space infections requiring immediate drainage
As a general dental practitioner (GDP) who does not have the power to sign an AWI section 47 form, outline the correct procedure for treating a patient who lacks capacity.
As a GDP without power to sign an AWI section 47 form, the correct procedure is:
Identify that the patient may lack capacity
Liaise with the patient’s General Medical Practitioner (GMP)
Request that the GMP assess the capacity of the patient
If the GMP determines incapacity, ask them to provide an Adults with Incapacity form
Provide the GMP with specific details of the dental treatment required to avoid inappropriate generalization on the form
Once the form is received, proceed with treatment according to the principles of the Act
Consult with any welfare attorney or guardian if one exists, though their consent is not legally required if a valid certificate is in place
Document the entire process thoroughly in the patient’s records
Imagine a scenario where Amanda, a patient with bipolar disorder experiencing acute psychosis, believes her dental crown contains a CIA tracking device and demands extraction. Analyze this case using the AMCUR framework and explain whether a certificate of incapacity would be appropriate.
Using the AMCUR framework:
Acting: Amanda can physically act on her wishes by attending the dental appointment.
Making a decision: Amanda’s decision is based on her delusional belief about the crown. This indicates impaired decision-making ability due to her acute psychosis.
Communicating a decision: Amanda can clearly communicate her decision to have the tooth extracted.
Understanding a decision: Amanda’s understanding is fundamentally flawed because it’s based on a delusion, not reality. She doesn’t truly understand the implications of extraction as she believes it’s removing a tracking device, not a dental restoration.
Retaining memory of decision: There’s no indication she can’t remember her decision.
A certificate of incapacity would be appropriate because Amanda fails the “understanding” component of AMCUR. Her decision is directly influenced by her psychiatric condition and isn’t based on an accurate understanding of reality. Treatment should be delayed until her acute psychosis resolves or is better managed, unless there’s a genuine dental emergency requiring immediate intervention. Consultation with her psychiatric team would be essential.
Describe in detail how you would assess a patient with early dementia for capacity to consent to full clearance of remaining teeth and provision of complete dentures. Include specific questions you would ask and how you would document your assessment.
Assessment of capacity for a patient with early dementia considering full clearance and dentures:
Step 1: Presumption of capacity and preparation
Review medical history and previous dental notes
Arrange appointment when patient is most alert (often morning)
Ensure appropriate support person present if needed
Allow adequate time for assessment
Prepare visual aids if helpful (models, pictures)
Step 2: Information provision in chunks
Explain current dental condition using simple language
Describe treatment options separately:
Maintaining teeth with ongoing treatment needs
Full clearance and complete dentures
For each option, explain:
What the procedure involves
Benefits and risks
Consequences of not proceeding
Use visual aids as appropriate
Avoid dental jargon
Step 3: Specific questions to assess understanding
“Can you tell me in your own words what problems you’re having with your teeth?”
“What are the options we’ve discussed for treating these problems?”
“What would happen if we removed all your teeth?”
“How would you eat and speak after having all your teeth removed?”
“What are the alternatives to having all your teeth removed?”
“What might happen if you decide not to have any treatment?”
“How do you think dentures might feel different from your natural teeth?”
“What would be involved in caring for dentures?”
Step 4: Assessment of decision-making ability
“Which option do you think would be best for you?”
“Why do you think that option would be best?”
“What matters most to you when deciding about your teeth?”
Step 5: Documentation
Document in patient records:
Date, time, and who was present
Patient’s current cognitive state (alert, confused, etc.)
Information provided and how it was communicated
Questions asked and patient’s responses verbatim
Assessment against AMCUR criteria
Reasoning for determining capacity or incapacity
If incapacity determined, document consultation with others
Plan moving forward, including any AWI certificates required
If capacity is borderline, consider arranging a second assessment on another day to check for consistency and retention of information.
The purpose of the Adults with Incapacity (Scotland) Act 2000 is to:
Provides a framework for safeguarding the welfare and managing the finances of adults who lack capacity due to mental disorder or inability to communicate.
A 19-year-old male with Autism requires the extraction of 8 teeth including impacted mandibular 8s. He tolerates an examination but does not like to be touched as he finds it painful. What would be considered as the least restrictive option for him?
GA
A 22-year-old female with a diagnosis of bipolar affective disorder attends your clinic. She is currently experiencing a period of manic depression. She reports having pain from an upper central incisor and advises you that the tooth is the reason for her current depression. The tooth is diagnosed as having a periapical periodontitis. There is a buccal swelling present. She maintains she wishes the tooth extracted. When you speak to the Consultant Psychiatrist in charge of her care, she is certain that the patient will return to having full capacity at some point in the near future. What is the most appropriate course of action?
Begin endo
A Power of Attorney is:
A person who is nominated whilst an individual still has capacity who is subsequently legally appointed by a court to make decisions on the behalf of that individual when they lose capacity
An individual with an intellectual disability is unable to consent to 3rd molar surgery. He has the capacity to make decisions about all other aspects of his dental care including examination and restorations which will be required to establish dental health. He requires restorations and the removal of a 3rd molar. His Mother is his welfare guardian.What certification is necessary to facilitate his care?
His Mother should be consulted as the Welfare Guardian for 3rd molar surgery only and a Section 47, Adults with Incapacity Certificate should be provided for the surgical removal of a 3rd molar
An 18-year-old male with a diagnosis of Autistic Spectrum Disorder attends your dental practice. He has no verbal communication and will not sit in the dental chair. His mother believes he is in a pain. He requires a full examination and multiple teeth removed. A general anaesthetic is justifiable under the adults with Incapacity Act because it is:
The option which considers all 5 principles of the Adults with Incapacity Act
In the Adult’s with Incapacity (Scotland) Act 2000 a Welfare Guardian is
A person who is legally appointed by the courts to make the decision on behalf of a person who lacks capacity
