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Introduction
2.1 In this chapter we define who will be affected by our new legislation, the general grounds for intervening in an adult's affairs, the jurisdiction of the courts and the supervisory framework for the new measures.
Policy objectives
2.2 Provisions in our legislation will apply only to adults, whom we define as those aged 16 and over. The legislation will only apply to a person who is incapable of acting, making decisions, communicating decisions or understanding decisions because of mental disorder or because of an inability to communicate caused by a physical or other disability. The Bill will use the definition of mental disorder set out in section 1 of the Mental Health (Scotland) Act 1984, that is: mental illness or mental handicap however caused or manifested. An adult will not be treated as suffering from mental disorder only because of immoral or imprudent behaviour or behaviour due only to the influence of alcohol or drugs. Incapacity is to be considered in relation to a particular decision or set of decisions. It is not an all-or-nothing condition.
2.3 The Mental Health (Scotland) Act definition of mental disorder is being thoroughly reviewed by the Millan Committee. For this reason we have not attempted to change the definition in the Adults with Incapacity (Scotland) Bill but accept that we may need to reconsider the definition in the light of the Committee's findings.
2.4 Before defining an adult as having incapacity within the meaning of the legislation, all reasonable efforts will have to be made to enable them to communicate effectively. The adult must be given the chance to express his or her current wishes and feelings by any suitable means of communication. The assistance of an independent interpreter or advocate or any other person who is familiar with the adult's means of communication should be made available. In some cases, technology may help. Before any action under the legislation is attempted, all reasonable efforts will have to be made to enable the adult to understand the issue being considered.
General principles governing intervention
2.5 The Scottish Law Commission formulated admirably the principles upon which our legislation will rest. These are:
2.6 We thus aim to empower adults with incapacity, respecting their rights and acknowledging that many have been capable of managing their own affairs in the past and some will be able to do so again in the future.
Role of the courts
2.7 In general, it will be the sheriff court that will authorise interventions in the welfare and financial affairs of adults with incapacity. However, certain matters relating to consent to medical treatment as set out in later chapters, will only go to the Court of Session. The sheriff will be able to appoint a safeguarder to look after the interests of the adult. The safeguarder's role will be to protect the adult's interests in the proceedings.
2.8 A wide range of people will be able to apply to the court for our new measures, for example, family, friends, neighbours and solicitors as well as statutory bodies with an interest. Proceedings should be as informal as possible, for the benefit of the adult, their relatives, friends and carers. Court procedure rules will be made separately.
2.9 We shall provide that the court or the Public Guardian will notify all those concerned, including the adult with incapacity, of applications, registrations and orders under our legislation. Notice will only be withheld from the adult if there is evidence that such notice would be likely to be detrimental to their health.
Supervisory framework
2.10 Various statutory agencies will be involved in supervising those who take decisions on behalf of people who lack capacity: the Public Guardian, the Mental Welfare Commission, local authorities and health boards. We shall require them to co-operate and share information in order to work effectively together. They will, of course, pay due regard to client confidentiality.
Public Guardian
2.11 The office of the Accountant of Court, which lies within the Supreme Courts, will be expanded to form a new office of Public Guardian. Its functions will be to maintain and amend public registers of court appointments and orders relating to the adult with incapacity; to maintain and amend registers of continuing and welfare attorneys; to supervise and monitor the financial powers of guardians and persons appointed under intervention orders; and to investigate complaints relating to the management of finances by attorneys, guardians and others.
The Mental Welfare Commission
2.12 The Mental Welfare Commission will retain its general protective functions towards mentally disabled people and its other powers under the Mental Health (Scotland) Act 1984. It will monitor attorneys and guardians with welfare powers, and carry out investigations where something appears to be wrong. It will be able to take action, including legal proceedings, to protect the adult's welfare. Under the 1984 Act, the Commission's role extends only to people whose incapacity is due to mental disorder, as defined in the Act, not to those who are incapable of making decisions for other reasons. This will continue to be the case under the new legislation.
The local authority
2.13 Local authorities play a major role in the provision of community care. They are therefore already involved in looking after the personal welfare of many adults with incapacity. Their role will be expanded to include the supervision of welfare guardians and attorneys and those acting under intervention orders. They will be able to investigate complaints and suspicious circumstances. They will also have a duty to apply for an intervention or guardianship order if such an order appears necessary for the adult's benefit. In appropriate cases, the chief social work officer will be appointed as welfare guardian. Mental Health Officers will investigate cases and provide reports in connection with applications for guardianship or intervention orders. Registration and Inspection teams will oversee new arrangements for care home managers to manage the finances of residents who lack capacity.
Health boards
2.14 Registration and Inspection teams will have a similar role to those in local authorities in overseeing nursing homes looking after patients' funds.
Duties in relation to adults with incapacity
2.15 The relationship between a guardian or attorney and an adult with incapacity is based on trust. The guardian or attorney must take decisions that will benefit the adult, not themselves. For example, a guardian must not profit personally from investing the adult's money. It is possible, however, that an attorney or a guardian will encounter conflicts of interest because their interventions will result in their obtaining a benefit. For example, a better standard of living for the adult with incapacity may also benefit the carer. Such situations would require careful consideration to ensure that there had been no breach in the guardian's duty towards the adult. However, so long as the guardian or attorney has acted reasonably, in good faith and in accordance with the general principles set out above, they will not be liable for the breach.
Ill-treatment and neglect
2.16 We shall create a new offence for anyone exercising welfare powers under our legislation who wilfully neglects or ill-treats an adult with incapacity.
Codes of Practice
2.17 When our legislation is implemented, we shall issue various Codes of Practice, mainly for those taking decisions about the welfare, treatment and finances of an adult with incapacity. The Codes will give practical information and guidance and will provide more detail than the legislation itself. We shall consult widely on their content.
Alternative approaches
2.18 The Scottish Law Commission considered whether applications for legal intervention under this legislation should go to the sheriff court or to a new lay hearing system or to special tribunals. Most people they consulted favoured the sheriff court for its impartiality, authority and experience in conducting hearings and producing reasoned written decisions. The sheriff court was also thought to be the best forum to deal with property and financial cases. It is also of course more accessible generally than the Court of Session.
2.19 The Scottish Law Commission recommended that proceedings under the new legislation should be heard, so far as possible, by nominated sheriffs who have received special training. We do not think this should be a hard and fast arrangement, especially in remote areas where few sheriffs are available, and it will not be included in our legislation. We are, however, acutely aware of the need to provide all sheriffs with adequate information and training when our proposals are implemented.
Consultation
2.20 Some concerns have been expressed about the definition of mental disorder used in the Scottish Law Commission report. "Learning disability" is now a more commonly accepted term than "mental handicap". We have been asked to consider whether the definition adequately includes all groups of adults with a mental disability, such as those suffering from head injuries. The Millan Committee is currently reviewing the definition of mental disorder used in mental health legislation and we do not wish to adopt a different approach at the moment. There are some advantages in consistency between incapacity and mental health legislation. We are satisfied that the definition of incapacity set out above covers all those who should have the protection of the current proposals. We accept that we may need to look at the definition again at some later date in the light of the Millan Committee's findings.
2.21 Nearly all the comments on the role of the Public Guardian agreed that the proposals set out in the 1997 consultation paper struck the right balance between empowering carers and protecting adults with incapacity. Some respondents thought that the Public Guardian or another public body should monitor management of funds by residential establishments, others that it should be possible to appoint the Public Guardian as financial guardian of last resort. We have considered these proposals but have rejected them for the reasons set out in chapters 5 and 7 respectively.
2.22 Most responses agreed the proposals for the roles of the Mental Welfare Commission and local authorities. Some helpfully emphasised the importance of communication between the Public Guardian, Mental Welfare Commission and the local authority to ensure an effective and consistent approach to their responsibilities.
Conclusion
2.23 These provisions set out the general framework within which our policy will operate. The following chapters will provide details of our policies relating to attorneys, access to funds, management of residents' finances, medical treatment and guardianship.
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