Written Question · S5W-15082 · Session 5
What its position is on the assertion that it does not necessarily follow that a patient will be entirely lacking in legal capacity even th…
The question
To ask the Scottish Government what its position is on the assertion that it does not necessarily follow that a patient will be entirely lacking in legal capacity even though, because of a mental disorder, his or her ability to make decisions regarding the provision of medical treatment is significantly impaired and, in light of this, whether it considers that the Significantly Impaired Decision Making Ability (SIDMA) test is a valid test of legal capacity.
The answer
There is no test of capacity set out in the Mental Health (Care and Treatment) (Scotland) Act 2003. In some circumstances different provisions and safeguards of the 2003 Act apply if the patient does not have capacity to make a certain decision in relation to treatment at a certain time.
A person has a Significantly Impaired Decision Making Ability (SIDMA) when a mental disorder affects the person’s ability to believe, understand and retain information, and to make and communicate decisions. All adults are assumed to have a decision-making ability or capacity as a starting point. A person with a mental disorder who retains unimpaired ability to take treatment decisions cannot be treated compulsorily under the 2003 Act.
The medical practitioner must believe there are sufficient grounds before deciding it necessary to grant an order for a patient who is refusing to accept treatment on a voluntary basis.The patient has a mental disorder.The patient has significantly impaired decision-making ability with respect to medical treatment for mental disorder, as a result of his or her mental disorder.Detention in hospital is necessary to determine what medical treatment is required and to provide that treatment.Significant risk exists to the health, safety and welfare of the patient or to the safety of others if the patient is not detained.
Mental health law in Scotland is based on rights and principles and offers patients significant safeguards where compulsory treatment is necessary. These safeguards include an independent Mental Health Tribunal which grants and reviews orders for compulsory treatment. The patient or the patient’s named person can appeal to the Mental Health Tribunal for Scotland to have an order allowing compulsory treatment revoked.
A person has a Significantly Impaired Decision Making Ability (SIDMA) when a mental disorder affects the person’s ability to believe, understand and retain information, and to make and communicate decisions. All adults are assumed to have a decision-making ability or capacity as a starting point. A person with a mental disorder who retains unimpaired ability to take treatment decisions cannot be treated compulsorily under the 2003 Act.
The medical practitioner must believe there are sufficient grounds before deciding it necessary to grant an order for a patient who is refusing to accept treatment on a voluntary basis.The patient has a mental disorder.The patient has significantly impaired decision-making ability with respect to medical treatment for mental disorder, as a result of his or her mental disorder.Detention in hospital is necessary to determine what medical treatment is required and to provide that treatment.Significant risk exists to the health, safety and welfare of the patient or to the safety of others if the patient is not detained.
Mental health law in Scotland is based on rights and principles and offers patients significant safeguards where compulsory treatment is necessary. These safeguards include an independent Mental Health Tribunal which grants and reviews orders for compulsory treatment. The patient or the patient’s named person can appeal to the Mental Health Tribunal for Scotland to have an order allowing compulsory treatment revoked.
In the Official Report
No contribution in the Official Report cites S5W-15082 by reference.