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2 BACKGROUND: MAKING DECISIONS FOR ADULTS WITH
INCAPACITY
2.1 The introduction of the Adults with Incapacity
(Scotland) Act 2000 (
AWI/the Act) substantially reformed
fragmented, outdated provisions which could have
inappropriate and harmful outcomes for adults; and removed
barriers to decision-making on behalf of the adult by
family members and others caring for the adult. The Act
introduced comprehensive legal reforms to protect the
interests of adults (persons of 16 and over) who are not
able to make all or some decisions for themselves. It is
founded on the principles of autonomy and equity. Adults
who are unable to make decisions for themselves should not
be disadvantaged because of a lack of legal provisions to
support them. The legislation aims to strike a fair balance
between empowering and protecting adults with incapacity
and enabling their carers and others to manage their day to
day welfare and financial affairs.
2.2 It has been estimated that this legislation could
potentially apply to around 100,000 affected adults, as
well as their carers and families. It applies to
individuals who are assessed as incapable of acting,
making, communicating or understanding decisions because of
mental disorder or an inability to communicate caused by a
physical disorder. The main groups to benefit from the
provisions of the Act are people with dementia, people with
learning disability, people with severe acquired brain
injury and people with severe mental illness.
Learning from Experience: the consultancy on
implementation, monitoring and research
2.3 In 2002, the Scottish Executive commissioned a two
year consultancy to explore issues arising from those parts
of the Act concerned with powers of attorney (Part 2),
intromission with funds (Part 3), and intervention and
guardianship orders (Part 6); to monitor usage; and to
undertake research relating to the Act's operation. The
project adopted the title "
Learning from Experience".
What did the study find?
2.4 The evidence from the study suggests that the Act is
working and is yielding benefits for adults with incapacity
and for those who care for and about them. The principles
in the Act have been warmly welcomed, as has its
decision-specific definition of incapacity, replacing the
previous 'all or nothing' approach which did not focus on
the needs, wishes and capabilities of the adult.
2.5 One of the early successes of the legislation is
that over 47,000 powers of attorney have already been
registered with the Public Guardian. This is a particularly
welcome development, because it is the means by which
people can choose who looks after their affairs if they
become unable to do so themselves.
2.6 The issues raised in the report fall into broad
categories of policy/legislation, procedures and practice.
These are not regarded as mutually exclusive as it could,
for example, require legislative changes to effect
improvements or streamlining in some procedures.
The Executive's response to the
findings
2.7 The Executive's response to the findings in the
Learning from Experience report
4 was published in a letter from Hugh Henry, Deputy
Minister for Justice, to Annabel Goldie
MSP, Convener, Justice 2 Committee of
the Scottish Parliament (28 October 2004).
5 The letter sets out the Executive's action plan for
taking work forward on the issues raised including changes
to the current arrangements for civil legal aid and advice
and assistance which would make free legal aid available
for welfare guardianship proceedings under the Act. The
action plan also addresses other work in hand on a number
of procedural issues. The Minister announced the
appointment of a National Practice Co-ordinator for a
period of two years to take work forward on implementation
issues
6.
Possible changes to the Act
2.8 Nothing in the report leads to the conclusion that
quick or radical change is needed to this major piece of
legislation. It is early days and a measured approach is
being taken to the possibility of changes to the Act. The
findings from the
Learning from Experience study suggested that
changes to the Act may be required to improve accessibility
to and operation of the scheme for the intromission with
funds. Another area of concern is the complex procedures
for recalling guardianship, particularly as they affect
local authority guardianships. It may be the case that the
best solution to address the question of financial guardian
of last resort will also require a change in legislation.
Time scales for applications and reports for guardianship
and intervention orders have been raised as an issue, as
have bonds of caution (insurance). A number of technical
points relating to the legislation were also raised.
2.9 This consultation is the outcome of further work on
the legislative issues identified. We are grateful to
members of stakeholder working groups and to other
individuals and organisations who have helped to shape our
thinking about the potential solutions on which we invite
the views of a wider constituency of interests. We are
aware that some of our proposals will require more detailed
consideration of operational issues with those agencies
anticipated to be directly affected by the changes.
When to invoke the Act
2.10 The issue here is whether it is necessary to invoke
the Act in every case where an adult lacks capacity to make
or carry out a decision in relation to welfare matters. We
issued guidance on this matter to local authorities in
July 2004
7. The National Practice Co-ordinator was asked to
work with interested parties to produce further Scottish
Executive guidance on when to invoke the Act.
2.11 The Co-ordinator has convened a task group
comprising representatives from local authorities, service
user and carer organisations and the Mental Welfare
Commission, to advise on the development of further
guidance. Initial work has however been halted because of a
decision of the European Court of Human Rights (
ECtHR) in the "Bournewood" case, which
may have legal implications for both the
AWI Act and the Mental Health Act.
Bournewood deals with the detention of an apparently
'compliant' adult in England. The
ECtHR held that to detain him in
hospital under the common law doctrine of necessity was not
compatible with human rights. We hope the Department will
be able to issue further advice soon.
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