SUMMARY OF SUBMISSIONS FROM THE LAW SOCIETY
Below is a summary of our concerns.
However we wish to stress at the outset that we welcome publication
of a draft Bill and look forward to a Bill being introduced to
Parliament in the near future.
Summary of concerns:
1. Best Interests
We consider the Scottish 'general principles'
are more appropriate and less paternalistic and prescriptive.
The Bill should make the intention of the legislation more clear
ie, That it is not intended to interfere with a person's own decision
making where they are able to do this. The Bill needs to show
that it intends to encourage supported decision-making and regulate
substitute decision-making where this is appropriate.
2. Public Law duty to investigate
suspected abuse and exploitation
We consider the Bill has missed an opportunity
to provide adequate safeguards for the physical (and financial)
safety of vulnerable adults and that Social Services and appropriate
NHS bodies should be vested with similar powers and duties as
those contained in the Children Act 1989.
with General Authority
We welcome this practical provision but take the
view that the proposals do not provide sufficient safeguards for
carers or individuals. Nor are the powers under a general authority
4. Problems with Lasting Powers
The Law Society have identified several
technical difficulties with the Bill
5. Alternative Dispute Resolution
and the Code of Practice
These topics are pervasive and are raised
throughout the submissions
6. Reasonable Belief
We consider that the test of reasonableness
of a person's belief about a person with impaired capacity should
be an objective one.
7. Assessment of capacity
The BMA/Law Society guidance may be
incorporated into a code of practice, and that any assessment
procedure should avoid bureaucracy and over medicalisation.
The Law Society considers the new Court of Protection
should have its' powers specified to increase access to justice
for those unable to pay legal advice.
9. Legal Advice and Assistance
The objectives of this Bill will be
wholly undermined without adequate public funding.
10. Human Rights compatibility
Several potential conflicts are identified
11. Interface with Mental Health
Several overlaps are identified along
with suggested ways of dealing with it.
12. Mutual Recognition of other
This needs to be specified in the Bill
Consultation group should be wider