Mental capacityAssessing dental patients’ capacity to consent is a vital component of the treatment planning process. Sarah Ide dentolegal adviser at the Dental Defence Union (DDU), discusses what to consider if you believe a patient may lack mental capacity.

Scottish law makes the presumption that all people aged 16 or over have the capacity to make personal decisions for themselves. This includes decisions relating to their dental care.

An individual under the age of 16 is considered to have full understanding. They have legal capacity to provide or withhold consent on their own behalf. This is set out in the Age of Legal Capacity (Scotland) Act 1991. The Children (Scotland) Act 1995 governs the law for children who do not hold the capacity to provide their consent.

The Adults with Incapacity (Scotland) Act 2000 allows this presumption to be overturned in relation to particular matters or decisions where there is evidence of impaired capacity.

The Act safeguards the welfare and finances of adults who lack capacity. Welfare issues cover not only financial and property matters, but also health-care issues including medical and dental treatment decisions.

Part five of the Act relates to medical treatment and research (including dentistry). The Scottish government has published a code of practice for the application of part five (updated October 2010). This details how to apply the the provisions of the Act.

Factors impacting upon mental capacity

Factors such as disease, disability, injury, side-effects of medication and use of recreational drugs or alcohol can impact and impair an individual’s mental capacity. However, it’s important to remember that any of these conditions do not automatically remove the presumption of capacity.

Capacity is time and situation specific. It’s possible for a patient to lose and regain their ability to make decisions for themselves. This is determined by their level of impairment at any given time. It is also possible that some patients may have capacity to make certain decisions but not others. It depends on their level of impairment.

Treating adults with impaired mental capacity

Individuals must appropriately train in order to make decisions about an individual’s capacity. Section 47 of the Adults with Incapacity (Scotland) Act 2000 states that ‘a dental practitioner…who is primarily responsible for medical treatment of the kind in question’ can train and certify to assess the capacity of a patient.

However, this certification is for a specified period of time. A time when the dental practitioner has the ‘authority to do what is reasonable in the circumstances, in relation to safeguard or promote the physical or mental health of the adult’. This is so long as the treatment proposed would be of benefit to the patient. Also, the patient is incapable in relation to a decision about that intervention.

The time period outlined in the certificate is what is considered appropriate for the particular intervention and the individual patient. This can be for either a single intervention or a more extensive treatment plan and does not usually extend beyond one year. However, in some circumstances a three year certificate may be in effect where the patient suffers from a condition that is unlikely to improve, such as a:

  • Profound learning disability
  • Severe dementia
  • Severe neurological disorders.

Regularly reviews

Members of the dental team are strongly advised to regularly review the capacity of patients being treated under such certificates and to review the treatment being given under the Act.

In the circumstances that you don’t receive the appropriate training or are unsure about the capacity of a particular patient at any given time, you should defer treatment until a suitably qualified medical professional can make a determination.

However the Act does not prevent a dental professional providing care to a patient in a medical emergency. You should not delay treatment of unconscious casualties to complete certificates.

Welfare attorneys

Sometimes a patient may have appointed a welfare attorney to make decisions on their behalf. This is if and when they lose capacity. A patient has to do this before they lose capacity which is not always possible.

The welfare attorney’s power will only come into force when the adult loses capacity to make the specific decision themselves. An attorney cannot compel a dental professional to provide a treatment, or order an investigation, that the dental professional does not think is of benefit to the patient. The Act sets out a process to resolve disputes between healthcare professionals and attorneys.


To learn more about assessing mental capacity visit www.theddu.com.