Scottish Government Consults on Adults with Incapacity

The Scottish Government has recently launched a consultation exercise over possible changes to legislation relating to Adults with Incapacity.

The changes are based on a report produced by the Scottish Law Commission in October 2014, which focused on the question of deprivation of liberty as it relates to persons who may be subject to the Adults with Incapacity legislation and associated issues.

The report made a number of recommendations and contained a draft Bill, amending the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.

The Commission’s report concluded that adults without incapacity are being confined to hospital wards and residential facilities in Scotland without any underlying legal process, which is contrary to their human rights

The consultation paper seeks views on specific matters raised in the Commission’s report, with particular reference to the Commission’s draft Bill and how that would work alongside the existing legislation. It also takes the opportunity to seek general views on wider aspects of the 2000 Act that may benefit from review.

According to Government figures, there are approximately 36,000 persons in care homes in Scotland at present. Of that number, around 20,000 at any given time may have some form of cognitive impairment to a level that would mean they were incapable of making decisions about their care and welfare.

The Government believes that any steps that might be taken to restrict those individuals’ freedom of movement in some way should be subject to a process to ensure that the individual is not being unlawfully deprived of his or her liberty.

The Scottish Government says that it has yet to take a view on the Commission’s recommendations and on what changes, if any, may be required to the legislation. Before making any decisions as to the way forward in this area of the law it is seeking views from stakeholders to assess whether there is broad support for the approach the Commission has taken and the detail of the draft Bill.

Contains public sector information licensed under the Open Government Licence v3.0.

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