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Opinion: Sarah Prentice

14 May 18

Ministers seek to reform adults with incapacity law to take account of human rights developments, but there are grounds for concern whether aspects of the proposals would be human rights-compliant

by Sarah Prentice

The Adults with Incapacity (Scotland) Act 2000 (“AWI”) is under review. The response deadline to the Scottish Government consultation paper was 30 April 2018. AWI safeguards the interests of vulnerable people in our society. I joined the Mental Health & Disability Subcommittee at the pinnacle of years of practitioners, stakeholders and academics urging reform of our statutory framework for safeguarding and promoting the property, financial and welfare interests of adults with incapacity.

The protection that the law affords to adults with incapacity has developed significantly since AWI was enacted. In the Bournewood case (2005), the European Court of Human Rights made it clear that persons who lack capacity to consent to the deprivation of their liberty must have the protection of article 5 of the Human Rights Convention (“ECHR”), and must be afforded ECHR-compliant legal and procedural safeguards. In 2009 the UK Government ratified the UN Convention on the Rights of Persons with Disabilities. In 2011 the Public Guardian proposed a system of graded guardianship to address the concern that a universal approach was applied to the whole diverse range of guardianships. In 2014 the UK Supreme Court in Cheshire West defined deprivation of liberty (DOL) as existing where the person is under continuous supervision and/or control, is not free to leave and lacks capacity to consent to these arrangements. This raised a concern that the majority of residents detained in care homes and in hospitals could be deemed to be under a DOL. 

Change in the law is needed not only with regard to ECHR and UN Convention compliance, but also in the processes for applying for guardianship. There is an inefficient use of resources, and the year-on-year increase in applications to the sheriff court has exposed the current system’s flaws. The committee has formed the view that a new unified tribunal having jurisdiction over all applications under AWI, adult support and protection, and mental health would be beneficial. The Public Guardian’s proposed graded guardianships system is innovative, but there are concerns that it may not be ECHR-compliant, particularly in transferring many applications from the sheriff court to the OPG itself.

We cannot move into a “tick box” process. Greater safeguards are required, with judicial scrutiny and consideration. 

The consultation offers a definition of significant restrictions on liberty, proposing that such restrictions are permissible “if a person seeks through words or actions to express their wish to be in a given place and to receive care and treatment in a given manner”. However, that carries a clear risk that any compliance or lack of objection could be taken as valid consent/assent. Further protection is required to ensure that vulnerable persons are not subjected to arbitrary DOL. The committee suggests a presumption that circumstances that amount to confinement also amount to a DOL unless the person or body responsible for those circumstances can establish that the individual concerned is validly consenting.

A further proposal is provision for a grantor of a power of attorney to be able to empower their attorney to consent to deprivation of the grantor’s liberty. However, it is necessary that the grantor has expressly explained whether and under what circumstances an attorney can consent to what amounts to a DOL.

An extension of the range of professionals who can assess capacity is proposed. This hopefully will shift the erroneous concept that capacity is solely a medical issue. It is a much broader and more fluid concept. Assessments should be made by professionals who are appropriate for the purposes of the assessment. We must ensure that the appropriate training is giving to any professional who is to assess capacity.

Under the UN Convention we have an obligation to support people in the exercise of their own legal capacity.

The reform should reflect a shift in emphasis towards supported decision making. The paper suggests the introduction of an “official supporter”. This concept is welcomed, but the term “official” does not seem in keeping with the concept of support. “Registered” might be preferable.

The Scottish Government appears to be committed to achieving the requisite reform, but its paper, in its current form, gives rise to many concerns in relation to ECHR and UN Convention compliance. 

For the committee’s full response to the consultation visit the Society's website 

Sarah Prentice is an associate with Garden Stirling Burnet, Tranent, and a member of the Law Society of Scotland’s Mental Health & Disability Subcommittee

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