Extract from Current Law Statutes, Adults with Incapacity (Scotland) Act 2000 (asp4) Annotations by Adrian D Ward, MBE, LLB
Background
In the period 1984-1990, attention was drawn to the deficiencies of existing law and suggestions were made for improvement: see, for example Dementia and the Law: The Challenge Ahead (Scottish Action on Dementia, 1988) and A. D. Ward Scots Law and the Mentally Handicapped (1984) and The Power to Act (1990). In the same period tutors to adults were re-introduced in their modern form, the first such appointment being in 1986, initially to make good the lack of any true personal guardianship in Scots law (which role will now be taken over by welfare guardianship), and thereafter also on occasions to deal with single issues (which will now be covered by intervention orders).
Internationally, the trend to reform accelerated during the same period. The Dependent Adults Acts of Alberta had already influenced the concept of revived tutors-dative. The process of reform in Scotland was particularly influenced by the Protection of Personal and Property Rights Act 1988 of New Zealand and the Betreungsgesetz 1990 of Germany. Similar principles can be identified in all of these reforms, so that it is possible to generalise about "old law" and "new law".
Formally, the process of reform commenced in Scotland with the Scottish Law Commission's Discussion Paper No. 94, Mentally Disabled Adults: Legal Arrangements for Managing their Welfare and Finances (September, 1991). Consultation was wide-ranging, with considerable input from relevant organisations and interested individuals, including representatives of the whole range of relevant disabilities. The Commission published its Report on Incapable Adults(Report No. 151, "SLC Report") in September, 1995. Government published its own Consultation Paper,Managing the Finances and Welfare of Incapable Adults in February, 1997. There was increasing anxiety that the pace of deliberation did not match the urgency of the need for law reform. In December 1997 a number of concerned organisations formed the Alliance for the Promotion of the Incapable Adults Bill ("the Alliance"). Membership rapidly grew to over 70 voluntary, professional and other organisations, including over 30 national organisations. Active campaigning publicised examples of both the inappropriate and harmful outcomes under existing law and the numbers of adults in Scotland at any one time affected by some form of incapacity, from causes including dementia (currently some 61,000 in Scotland), moderate to severe learning disability (currently 20,000), serious head injury (1,500 per annum in Scotland), and strokes and psychiatric hospital admissions (10,000 and 30,000 per annum respectively, not all of them entailing impairment of capacity). The Alliance estimated that approximately 100,000 adults in Scotland at any one time have impairment of capacity, and that estimate was subsequently quoted by the Scottish Executive. Put another way, the issues affect most families, sooner or later.
The Alliance was unsuccessful in its initial aim of achieving legislation by Westminster in 1998/1999. Lobbying of all of the Scottish political parties resulted in commitments by all to support legislation in the first session of the Scottish Parliament. Those commitments were honoured. The Scottish Executive published its proposals in Making the right moves: Rights and protection for adults with incapacity in August, 1999. The present Act followed, providing vindication and commendation of the new legislative arrangements. First and foremost, where Westminster could not find time for such essential law reform, the Scottish Parliament has delivered in its first session. Secondly, there was unprecedented openness, involvement of affected citizens, and responsiveness to their views, on the part of Scottish Executive Ministers and officials, the key Parliamentary Committees (principally the Justice and Home Affairs Committee, and also the Health and Community Care Committee), and the Parliament itself. Rapid publication of papers and proceedings on the Parliament's website encouraged this process. Considerable demands were placed upon MSP's both by this openness and by the stringencies of unicameral legislation (leaving some errors and blemishes mentioned in the annotations to sections and Schedules where they occur).
The Bill was introduced on October 8, 1999, accompanied by Explanatory Notes SP Bill 5-EN and Policy Memorandum SP Bill 5-PM. It was preceded by informal consideration by the Justice and Home Affairs Committee. That Committee then heard oral evidence on November 3, 9 and 17, 1999, also considered written evidence, and agreed its Stage 1 Report on December 1, 1999. The Stage 1 debate took place on December 9, 1999. The Health and Community Care Committee also considered the Bill at Stage 1, at meetings on November 16 and 17, 1999. Its Report appears as Appendix 1 to the Stage 1 Report. The Justice and Home Affairs Committee concluded Stage 2 proceedings on March 1, 2000. Finally, the Stage 3 debate took place on March 29, 2000, and after further amendment the Bill for this Act was passed on that date. A total of 327 amendments were tabled at Stage 2, and 158 at Stage 3.
Published with the permission of Sweet and Maxwell/W.Green.