As we reminded readers last month, the period for responses to the Scottish Government Consultation on the Adults with Incapacity (Scotland) Act 2000 ended on 31st March 2016. Scottish Government has not yet published the responses to consultation, but three are already in the public domain: from the Mental Welfare Commission for Scotland, the Public Guardian (Scotland) and The Law Society of Scotland. Each of these is a major document, responding carefully to the proposals in the Scottish Law Commission report on Adults with Incapacity but also containing a wide review of the whole relevant area of law, and tabling proposals for wide ranging reform.

At this stage it would be premature to attempt to assess in any detail the changes to be expected as a result of this consultation process. This will in any event be a matter upon the agenda of the Scottish Government which will be in power following next month’s elections.

On the particular issues regarding compliance with article 5 of the European Convention on Human Rights in relation to people deemed to be deprived of their liberty, the general flavour of the responses received so far indicates that further work will be required upon the proposals, on the one hand to ensure compliance with the requirement for regular judicial review, and on the other to integrate any such procedures more efficiently with the wider range or procedures which already exist. On topics for wider review, a few selective quotations will give a picture of the general thrust of the responses so far made public.

From the Mental Welfare Commission for Scotland:

Particularly in the light of the UN Convention on the Rights of Persons with Disabilities, we believe the starting point should not be to try to protect services from any possible legal challenge. It should be to devise a system which empowers people in care settings, and protects them where necessary. It should focus not simply on capacity as a legal concept, but powerlessness as a lived experience.


We propose a system of graded welfare guardianship, the general features of which we outline below. The Public Guardian has previously proposed a similar graded approach to financial guardianship, and we believe these approaches can be combined…


Level 1: Registered supporter . . . This would be a mechanism to recognise formally a person who supports the adult in decision-making. It would give effect to the concept of supported decision making, as called for by the UN Convention on the Rights of Disabled Persons. It also reflects the fact that many carers and family members still feel excluded and disempowered in dealings with services. Health and care services and other bodies such as banks may refuse to share information with or seek input from those who, in practice, support the adult in day to day living. The lack of formal status raises problems in relation to obligations of confidentiality. In our experience, it is this fear of lack of involvement which drives many families to seek guardianship, rather than a wish to control every decision of the adult.

From the Public Guardian:

The Public Guardian submitted a report to the Scottish Government in November 2011, entitled ‘Early Deliberation of Graded Guardianship’; this Report expressed serious concerns about the viability of the current guardianship regime as a result, inter alia, from increasing demands on mental health officers. The position has become ever more critical with reducing numbers of practitioners and increasing numbers of applications (as well as increasing demands on these same practitioners from other business). The suggestion that these same professionals will have a formal role in respect of significant restriction statements / applications will further pressure an already strained service. The process of applying for guardianship has become progressively more protracted, for a number of reasons but amongst these is the increasing difficulty and thus time taken to obtain the necessary mental health officer report; any new process which places even more demands on mental health officers risks the viability of the overall guardianship process and has to be of major concern and given very serious consideration.

15 years of experience with the 2000 Act has demonstrated that fundamentally it is fit for purpose but there are serious concerns about the ongoing ability to meet this purpose unless there is some modification and modernisation. We must take this opportunity to review the 2000 Act, re-engineer those sections that need updating and so ensure we have as robust and as enviable a statute to support our incapable citizens over the next decades of the 21st century.

From the Law Society of Scotland:

The Society … welcomes the encouragement which it has received… to suggest ways in which the combined jurisdictions in relation to adults with incapacity, adults in need of compulsory  mental health care and treatment, and adults who are vulnerable and at risk, are addressed in terms of the commendable and pioneering body of legislation introduced by the Scottish Parliament in 2000, 2003 and 2007 (and in amending legislation); and how what are at present separate jurisdictions are being operated in practice. … As a matter of urgency Scotland must improve the efficiency and effectiveness of the operation of the combined jurisdictions. In particular, the current position under the Adults with Incapacity (Scotland) Act 2000 (“the 2000 Act”) is inefficient and ineffective.  The fragmented operation of the three jurisdictions is inefficient because of the waste of public resources in terms of the current operation, in particular of the AWI jurisdiction by the courts and the drain on Legal Aid funds. The operation of the AWI jurisdiction is also expensive for litigants meeting their own costs, and time consuming and stressful for many of those involved in its procedures. This situation does not use the available resources of the Office of the Public Guardian and others with statutory roles to best effect. Most seriously of all, from the perspective of the Society in relation to its responsibility for the public interest, the current fragmented operation of the three jurisdictions and the current operation of the AWI jurisdiction in particular, frequently and seriously lets down vulnerable people, their families and carers. … In consequence of these concerns, we urge that early steps be taken to move to implementation of the “one door” approach unanimously favoured by all stakeholders and interest-groups in the 1990s during the processes of consultation and discussion which led to the 2000 Act.  

The 51-page response from the Law Society of Scotland draws upon the range of specialist expertise available within the Society’s Mental Health and Disability Sub-Committee to provide separate sections identifying areas for review of the Mental Health (Care and Treatment)(Scotland) Act 2003 and the Adult Support and Protection (Scotland) Act 2007, as well as a full section by section review of the Adults with Incapacity (Scotland) Act 2000. The Society’s response develops specific proposals, with reasons, for achieving the “one door jurisdiction” referred to in the quotation above. It addresses as separate topics the under-provision of Mental Health Officers, the  requirements  for compliance with the United Nations Convention on the Rights of Persons with Disabilities, matters originally proposed by the Scottish Law Commission in 1995 but omitted from the 2000 Act, and matters requiring coordinated action by both the UK and Scottish Parliaments.