Incapacity law review opens to consultation

A public consultation on the law relating to adults with incapacity has been launched by the Scottish Government.

Ministers are seeking views principally on the implementation of the Scottish Law Commission's 2014 report, which focused on the question of deprivation of liberty as it relates to those who may be subject to the adults with incapacity legislation and associated issues. However they are also asking for general views on wider aspects of the Adults with Incapacity (Scotland) Act 2000 that may benefit from review.

The Commission’s report concluded that adults with incapacity are being confined to hospital wards and residential facilities in Scotland without any underlying legal process, which is contrary to article 5 of the European Convention on Human Rights. The Scottish Government is of the view that that the existing mechanisms do not necessarily provide a sustainable way forward, and that the concerns and recommendations raised in the Commission's report should be explored further.

A draft bill with the report would create new processes which aim to avoid people being unlawfully deprived of their liberty, whether within a hospital or a community setting. These new measures would be enacted by way of amendment to the 2000 Act. This consultation therefore also seeks views on the impact such changes might make on the way the 2000 Act is currently operating.

The paper states that the Government has yet to take a view on the Commission’s recommendations and what changes, if any may be required to the legislation. It is seeking views on the issues from a range of perspectives so decisions are properly informed, in particular on whether there is broad support about the approach the Commission has taken and the detail of the draft bill.

Click here to access the consultation. Responses are due by 31 March 2016.