Adults with Incapacity Legislation in Scotland – Changes Afoot?


Some of you may be aware that there has been a recent Consultation (closed end of April) in which opinions were sought by the Scottish Government on proposed amendments to the current Adults with Incapacity legislation in Scotland (Adults with Incapacity (Scotland) Act 2000) Whilst there have been many consultation papers, and in some cases very little action (I am looking at you, Legal Rights!) the time seems right to review the Adults with Incapacity legislation which has now been in place for 18 years. More importantly there may be an appetite within the Scottish Government to progress with updated legislation given the UN Convention of the Rights of Persons with Disabilities recommendations and a cynic may say the wish of the Scottish Government to keep on the right side of the UN.

The Consultation covered a wide variety of topics which I do not anticipate covering in this article, however I thought it useful to discuss some of the highlights in order to tell those south of the Border what may be coming over the Scottish horizon namely:

  • Deprivation of Liberty
  • Advance Directives
  • Graded Guardianships
  • Official Supporters

Deprivation of liberty

Since the Cheshire West case in 2014 (P v Cheshire West and Cheshire Council [2014] 1 AC 896), I think that we can all agree that some clarification in terms of the ability for an attorney to deprive someone of their liberty would be very welcome.  One of the proposals contained in the Consultation is that a specific provision would have to be included in future Powers of Attorney which would detail the circumstances in which an attorney could consent to the deprivation of the Adult’s liberty and how such a deprivation is to be regularly reviewed.  Whilst this may be a welcome addition to the legislation, it is very much hoped that there would be a standard wording to avoid each firm trying to reinvent the wheel. It also fails to address the issue where deeds were executed prior to the introduction of the new law, which will leave many clients without an immediate remedy.

Advance Directive

Advance directives are becoming increasingly popular in Scotland but are not legally binding and are simply a declaration of wishes.  While there were no recommendations proposed under the Consultation, opinions were invited as to whether this should change.  It would seem sensible that this is brought in line with the English provisions which are much more robust in terms of respecting an adult patient’s wishes.

Graded Guardianship

There was discussion as to what the right forum to hear guardianship and intervention order cases should be: Sheriff Court (as is currently the case); or Mental Health Tribunal.  In either case there is a suggestion that graded guardianships based on assets and risk be introduced with three grades. The most contentious cases would require the full hearing either by Sheriff or the Tribunal with the least being subject to approval by the Office of the Public Guardian.  The Office of the Public Guardian has been starting to take a risk approach as evidenced by the introduction of the Professional Guardian scheme and this seems a natural progression of this.

Official Supporter

There was a suggestion that an official supporter be introduced as a recognised role whereby an Adult could nominate an official supporter who would get access to the necessary information and could support them in their decision making.  This would differ from an Attorney who could take on the decision making: a supporter would not have that authority.  On the basis that banks and other institutions can struggle to understand the authority of an Attorney, the question as to how a supporter would be allowed to access the accounts and where their authority would end is somewhat troublesome.  Moreover, in terms of the principles of the current Adults of Incapacity Act, where the past and present wishes of an adult should be respected and they should be encouraged to exercise whatever skills they have, one may argue that an attorney should already be fulfilling that position unless otherwise requested or required by virtue of the Adult’s wishes and/or ability.

There are many more suggested amendments to the current legislation and the Consultation Paper, some very thought provoking. It will be interesting to see how this develops over the coming months.  It seems likely that changes will indeed be afoot.

A Report is expected to be published in the summer containing the responses to the Consultation and the expectation is that time will be set aside for a Bill in the Parliamentary calendar over the following year…..time will tell.

(Author: Lianne Lodge, Legal Director at Gillespie Macandrew)