Joint Committee on the Draft Mental Incapacity Bill Memoranda





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.  Background to Reform in Scotland

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 in England.

The international context: human rights and non-discrimination

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.

The proposed general authority

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[1], which campaigned for law reform in Scotland.

The Adults with Incapacity (Scotland) Act 2000 - principles

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:

There should be no intervention unless the intervention will benefit the adult and the benefit cannot reasonably be achieved without the intervention;

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;

Account must be taken of the present and past wishes and feelings of the adult - if they can be ascertained by any means whatsoever, they must be ascertained;

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.

The Adults with Incapacity (Scotland) Act 2000 - experience to date

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 2nd April 2001. Further implementation followed in 2002. The final tranche, with a few small exceptions, will take effect on 1st 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.

The Adults with Incapacity (Scotland) Act 2000 - implementation

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[2], 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.


2   This information is also readily available on their respective websites plus URL. http://www.publicguardian - (Public Guardian) (Scottish Executive) Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 12 September 2003