Text size: a | a | a

Our proposals for legislative change in relation to the Adults with Incapacity Act 2000

 

The Scottish Law Commission launched a public consultation exercise about plans for its future law reform work earlier this year. It sought views and suggestions about areas of the law that may require reform which should be included in its next Programme of Law Reform, due to start in January 2010.

In our response we urged the Scottish Law Commission to consider the working of the Adults with Incapacity Act 2000 in light of the decision of the Court of Human Rights in the Bournewood case and subsequent developments in human rights law. In particular, we thought the Law Commission should consider whether clarification of the Act would improve the rights and protections available for adults and could clarify the rights of their carers, attorneys and guardians to arrange care, bearing in mind the importance of both the right to liberty and the right to family life.

The key areas addressed in our submission include:

  • Deprivation of liberty: Current Scottish Government guidance relates almost exclusively to deprivation of liberty of those who are being cared for in institutional settings. Many adults with incapacity have complex care needs which require care plans in the community, often their own homes, which may constitute a deprivation of liberty. It remains unclear whether a person who is unable to protect his or her own interests is deprived of his or her liberty if doors are locked for the individual's safety or if the person is not given free access to the outside world.

  • Carers: Should a carer be able to make residential care arrangements for an adult lacking capacity where the adult is compliant and there is no perceived deprivation of liberty? A carer might argue that the right to family life in article 8 of the European Convention on Human Rights allows him or her to make arrangements on behalf of a family member in such circumstances.

  • Welfare attorneys: Where a welfare power of attorney contains a specific power that allows the attorney to make arrangements amounting to a deprivation of liberty, it is unclear whether an attorney can consent to these arrangements if the adult appears to oppose or resist this.

  • Guardianship and deprivation of liberty: The Scottish Law Commission should consider whether it would be helpful to clarify the limits of welfare guardians' powers in relation to deprivation of liberty. In particular:

    • Should additional safeguards come into play in such circumstances?

    • Is detention in the home acceptable under human rights law?

    • Given the majority of orders are granted on an indefinite basis, should the Act require regular review of orders?

    • How long should guardianship last where an adult continues to be deprived of their liberty?

    • Should a welfare guardian have the authority to consent to treatment in situations where there may be a need to intervene to promote or safeguard the physical health of an adult who lacks capacity and actively resists treatment?