1. Memorandum from the Law Society of
Scotland (MIB 990)
1.1 The Mental Health and Disability Committee
of the Law Society of Scotland ("the Committee") welcomes
the opportunity of providing written evidence to the Joint Committee
on the draft Mental Incapacity Bill. The Committee has been closely
involved in the progress of the Adults with Incapacity (Scotland)
Act 2000 as it passed through the Scottish Parliament as well
as with the related subordinate legislation and supporting Codes
of Practice. The Committee therefore hopes that the Scottish experience
will be of assistance to members of the Joint Committee when considering
reform of incapacity law in England and Wales.
2.1 The Adults with Incapacity (Scotland)
Act 2000 was the first major piece of legislation passed by the
Scottish Parliament. No other area of Scots law was in more urgent
need of reform. The deficient elements of the previous law caused
injustice and sometimes harm to people with impaired capacity,
and caused disadvantage and difficulty to families, carers, professionals,
managers and others. In some situations the law provided only
unduly expensive and restrictive measures, which sometimes imposed
legal incapacity in excess of actual incapacity. In other situations
there was either no provision, or the law was uncertain, which
disadvantaged to people with impaired capacity either because
decisions were not taken at all, or matters were handled inappropriately
without proper consideration or procedure.
2.2 Prior to reform, some old procedures
had been revived and used to meet some needs. For example, the
appointment of tutors dative and tutors at law was revived to
meet needs for personal guardianship in some cases. These were
at best stopgap solutions pending statutory reform, but did give
experience of personal guardianship which helped inform subsequent
law reform. No equivalent personal guardianship is currently available
3. THE INTERNATIONAL
3.1 Reform of adult incapacity law in the
United Kingdom follows reforms in recent decades in most developed
legal systems. Such reforms have all followed a substantially
similar pattern. They recognise that incapacities, circumstances
and needs are variable, and that legal incapacity is often partial.
They are driven by principles of respect for human rights and
non-discrimination. People with incapacities should have the same
fundamental rights and protections as others. To the extent that
they can, if necessary with assistance, make and communicate their
own decisions, this should be respected and facilitated. They
should not be disadvantaged by failure to make, or have made,
appropriate decisions; but for someone else to make decisions
is a limitation of rights and a form of discrimination. Such differentiation
should be limited to the minimum necessary, but where special
measures are required they should be available. Where someone
else is to be authorised to make decisions for a person with impaired
capacity, human rights considerations demand that this should
follow upon proper assessment, proper determination of what powers
should be conferred and upon whom, and that there should be proper
monitoring, either by a court or at least with ready and effective
access to a court.
4. THE PROPOSED
4.1 It is not clear that the proposed general
authority in the draft Mental Incapacity Bill would meet the above
requirements. There is no equivalent provision in the Scottish
Act, nor would such a provision have been acceptable to any of
the organisations within the Alliance,
which campaigned for law reform in Scotland.
5. THE ADULTS
5.1 The most important aspect of the Scottish
legislation is the statement of general principles in section
1. Effect must be given to the first four principles in any intervention.
An intervention means not only the various procedures under the
Act, but also the acts and decisions of relevant appointees and
others. A decision not to do something can be an intervention.
The first four principles require that:
(i) there should be no intervention unless
the intervention will benefit the adult and the benefit cannot
reasonably be achieved without the intervention;
(ii) where there is an intervention, it must
be the least restrictive option in relation to the adult's freedom,
consistent with the purpose of the intervention;
(iii) account must be taken of the present
and past wishes and feelings of the adultif they can be
ascertained by any means whatsoever, they must be ascertained;
(iv) and so far as reasonable and practicable
the views of the nearest relative, primary carer and other appropriate
persons must be taken into account.
5.2 The fifth principle applies to various
appointees under the Act: so far as reasonable and practicable,
they are obliged to encourage the exercise and development of
skills by the adult. Appointees lose the benefit of the Act's
limitation of liability provisions if they fail to comply with
the general principles.
5.3 In practice, the general principles
provide not only a necessary protection for adults with impaired
capacity, and a framework for ensuring that appropriate measures
are put in place (and appropriate decisions taken) in individual
cases, but they have also proved to be very helpful in addressing
difficult or uncertain situations. Time and again, reference to
the general principles points the way to solutions in cases of
difficulty. It is notable that the draft Mental Incapacity Bill
appears neither to contain such a clear statement of principles,
nor to give such principles equally overriding force.
6. THE ADULTS
6.1 The Scottish Act represents an integrated
but not comprehensive code of legal provision in relation to the
property, financial affairs and personal welfare of adults with
impaired capacity. Implementation was phased, which was necessary
for such a major reform, but gave rise to some temporary difficulties
because of the inter-dependent nature of the Act's provisions.
The first tranche of implementation took effect on 2 April 2001.
Further implementation followed in 2002. The final tranche, with
a few small exceptions, will take effect on 1 October 2003. The
Act's provisions have been generally welcomed, and have achieved
significant improvements for people with impaired capacity. In
general terms, criticisms have highlighted areas in which further
training is required rather than deficiencies in the Act's provisions.
Across the range of professions engaging with the Act's provisions,
professionals with the most involvement and experience are generally
the most positive about the reforms.
6.2 The registration requirements, and supervisory
and investigatory provisions, of the Scottish Act appear to have
resulted in much better protections for people with impaired capacity.
It might be useful to consider the extent to which the draft Mental
Incapacity Bill would provide similar protection.
6.3 People with impaired capacity have also
benefited from the combination of heightened awareness and availability
of appropriate measures.
6.4 Some issues for possible adjustment
to the provisions of the Scottish Act have emerged. It may be
appropriate in some circumstances for certification under some
provisions to be extended to professionals other than medical
practitioners. In some circumstances it may be appropriate for
certificates under the new authority to treat to have effect for
longer than one year. In relation to authority for research, the
requirement for consent from appointee or nearest relative presents
difficulties where research can only be carried out at very short
notice. There is debate about whether (for example) local authorities
must obtain an intervention order every time someone lacking capacity
to consent is moved from hospital to a nursing home, even where
the circumstances appear to be non-controversial.
7. THE ADULTS
7.1 The new Scottish regime is contained
in the Act and several regulations made under it and has been
well supported by Codes of Practice, training materials and initiatives,
guidance and information published by the Scottish Executive and
by the Public Guardian,
publicity material including widely circulated posters and leaflets,
an active National Implementation Steering Group and other initiatives.
For example, there are training courses, seminars and training
videos available. These have all contributed substantially to
the successful introduction of the new regime in Scotland.
1 The Alliance for the Promotion of the Incapable Adults
Bill was a group of over 70 organisations who campaigned for reform
of incapacity law in Scotland. Back
This information is also readily available on their respective
websites plus URL. http://www.publicguardian-scotland.gov.uk (Public
Guardian) http://www.scotland.gov.uk (Scottish Executive). Back