The Adult’s with Incapacity (Scotland) Act 2000 (the Act) was one of the major advances in legislation in protecting the rights of Adults who are incapable, due to mental incapacity or physical disability, to make decisions about their personal welfare.
However the Act has now been in place for just over 16 years, and a major reform is believed to be required. The Chief Executive of the Mental Welfare Commission for Scotland (MWCS) released a statement saying that the Commission is “concerned about the increased use of the courts - applications for welfare guardianship rose 16% in 2014-15, and have gone up by 84% since 2009-10.”
The increase in applications does put pressure on Local Authorities, who are already finding themselves inundated with reports required to be completed by Mental Health Officers. At present the Act provides for a Mental Health Officer’s report to be available within 21 days, however more often than not it can take up to four months, or sometimes longer, for a report to be completed.
Recently a firm in Motherwell sought to challenge a local authority for failing to provide a report, after waiting four months for same. The firm were successful in their argument and the Court ordered the report to be produced. Whilst this is perhaps one of the first cases of its kind, it does not resolve the main issue.
The report by the MWCS came in response to a recent decision by the European Court of Human Rights and the UK Supreme Court. It has been suggested that many people in hospital, who lack capacity and are therefore unable to consent to their care and treatment, are being deprived of their liberty, which is in breach of Article 5 of the European Convention on Human Rights.
The issue of deprivation of liberty has become extremely topical. Presently, whilst an Adult may be happy to consent to a move to a care home, for example, should the Adult change their mind or want to leave said care home, in the absence of any Order for Guardianship, there could be many situations where deprivation of liberty can occur.
The MWCS has therefore called for a new system which would, potentially, reduce the need for loved ones having to go to Court when an Adult has lost capacity. This would include a new role of a “supporter” who would be able to assist the Adult in making choices about their care, and a more rigorous process for making decision about an Adult’s care which could ultimately impact upon an Adult’s human rights.
It remains to be seen when all of this will take place our family law experts will be keeping a close eye on the legislative changes. In the meantime, if you require advice in relation to a loved one who has lost capacity, please do not hesitate to contact our Family Law Team.
