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5 OTHER ISSUES
Displacement of
AWI nearest relative
5.1 Section 4 of the 2000 Act allows an adult with
incapacity to apply to the Court of Session or the sheriff
for an order that:
- appoints a nearest relative other than the person
who would be entitled to be so appointed in terms of
that Act;
- orders that no person shall be a nearest
relative;
- and/or restricts disclosure of information to the
nearest relative.
5.2 The only person who can apply for an order under
section 4 is the adult with incapacity.
5.3 Earlier discussions with stakeholders suggest that
the provisions in section 4 for displacement are not
reasonable because very few adults with incapacity are
likely be able to take action under them. In addition, the
provisions in the Mental Health (Care and Treatment)
(Scotland) Act 2003 which allow an interested person to
request the removal of a named person by the mental health
tribunal, mean that there is now a stronger case for others
with an interest to be able to use section 4 of the 2000
Act.
5.4 We therefore think that section 4 should be
broadened to allow for an application to the sheriff by a
person with an interest in the affairs of an adult with
incapacity.
5.5 In our earlier discussion with stakeholders we
considered whether the court should have, on its own
initiative, the power to make an order under section 4 in
the course of any proceedings before it. We reached the
view that this would be appropriate.
5.6 We understand that these changes would create the
possibility that an order may be applied for under
section 4 by a person with an interest, or considered by a
sheriff /judge, against the wishes of the adult. We think
therefore that certain steps should be introduced into the
procedure for granting an order under section 4 so that the
adult, and any other person whom the court considers has an
interest, is notified of the application and has the chance
to object.
We propose to broaden section 4 to allow for an
application to the sheriff by a person with an interest
in the affairs of the adult with incapacity and in
addition that the court should have, on its own
initiative, the power to make an order under section 4,
subject to intimation to the adult (informing the
adult) and any other person the court considers has an
interest.
Your views
17a Do you support the proposal to broaden section 4 to
allow for an application to the sheriff by a person having
an interest in the affairs of an adult with incapacity?
17b In addition, do you support the proposal that the
court should have, on its own initiative, the power to make
an order under section 4 subject to intimation to
(informing) the adult, and any other person the court
considers has an interest?
Certification of incapacity
5.7 Currently only a medical practitioner can sign
certificates of incapacity under the Act. There are
provisions in the Smoking, Health and Social Care
(Scotland) Act 2005 to extend the range of professionals
beyond medical practitioners who can sign certificates of
incapacity under Part 5. However, this extension only
relates to the fields in which these individuals practise
and is for the purpose of giving treatment within their
area of expertise. In terms of indemnity these
practitioners are covered because the certification would
occur in the course of work in their own field.
5.8 There could therefore be a question as to whether
certification under other parts of the Act should be
extended to other professionals. We do not have a firm view
on this but do not think it would be possible to use the
extended signatories under Part 5 because those who will be
able to sign under Part 5 will be doing so in the course of
their work for the limited purpose of providing care and
treatment within their own area of expertise. This would
not be the case in relation to other parts of the Act.
Transitional arrangements for pre- Act curators
bonis, tutors dative and tutors at law
(This section is for information only)
5.9 Schedule 4 Paragraph 6(3) deals with the situation
of curators, tutors, guardians and attorneys when the Act
came into force. It was the policy intention that the
appointments of curators bonis, tutors dative and tutors at
law should continue after the 2000 Act but that they should
be reconsidered under the 2000 Act by the court within
5 years. We have been advised that this is not the effect
of the provision as drafted. The Scottish Executive will
bring forward an amendment which would require that all
pre-Act appointments be reconsidered under the 2000 Act
within two years of the enactment of an amending
provision.
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