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Incapacity Act reform proposals go out to views

5 February 2018

Scotland's Adults with Incapacity Act, regarded as groundbreaking when passed in 2000, is due an overhaul in light of international developments since then, Scottish ministers have decided.

A consultation has opened on proposals to reform the Act, to ensure that the law remains fully fit for purpose.

The Act introduced for the first time a comprehensive regime to protect the welfare and financial rights of persons lacking in capacity, allowing people to appoint welfare and financial guardians to look after their interests should they become unable to do so properly themselves, or to apply to be appointed guardians to others.

One important development since 2000 has been judicial decisions on what amounts to deprivation of liberty for the purposes of the European Convention on Human Rights, particularly with reference to those in residential care homes or in hospital for treatment or assessment.

In 2014 the Scottish Law Commission produced a report on the subject, on which ministers sought views in 2016. These recognised a compelling need to ensure a lawful process in such cases, but believed that the changes proposed would result in a huge workload for an already pressurised system and workforce, and any changes to the law should take place within the context of a wider revision of the legislation.

The most popular wider proposals have been further worked on to produce the present paper. They relate to the following topics:

  • Graded guardianships, to make it easier to seek only those guardianship powers that are absolutely necessary to safeguard the finance and welfare of an adult. There would be three grades, with the complexity of the application increasing as the level of powers sought increases. This would replace the access to funds provisions and the management of residents' finances scheme.
  • Change of forum for adults with incapacity cases, with grade 1 guardianship applications being determined by the Office of the Public Guardian, grade 2 being a paper application to the sheriff of mental health tribunal – views on preferences are invited here – and grade 3 being a full hearing before the sheriff or tribunal.
  • Possible changes to the range of persons who can carry out capacity assessments.
  • Possible change in the way guardianships are supervised; also how advice and support can best be provided.
  • Creation of a supported decision maker role and a supported decision making scheme, for where the person supported does not wish to lose the authority to make a decision for themselves.
  • Clarification of use of powers of attorney in deprivation of liberty cases, through advance consent provisions on which an attorney can rely if the granter needs care in an environment involving restriction of liberty.
  • Creation of short term "placement order", along with orders for cessation of a residential placement.
  • Whether there should be clear legislative provision for advance directives in Scotland.
  • Clarification of the interaction between aspects of the adults with incapacity legislation and adult support and protection legislation.

A further general proposal is to add a new principle to those set out in the Act, to reflect article 12 of the 2009 United Nations Convention on the Rights of Persons with Disabilities. This would state: "There shall be no intervention in the affairs of an adult unless it can be demonstrated that all practical help and support to help the adult make a decision about the matter requiring intervention has been given without success."

This consultation is seeking your views on these changes to ensure that any new legislation in this field takes full account of the public's view on these matters.

Click here to access the consultation. The deadline for responses is 30 April 2018. 

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