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Adults with incapacity

Laura Dunlop, QC

Team members
Heike Gading, Project Manager
Susan Robb, Solicitor

The topic of adults with incapacity is included as a project in our Eighth Programme of Law Reform which outlines our main areas of work from 2010 to 2014. The aim is to complete work and publish a report by the end of the Programme in 2014.

This area of law is governed primarily by the Adults with Incapacity (Scotland) Act 2000. The Act brought about major reform of Scots law concerning adults who are not able to make decisions about their own affairs. Many provisions of the Act implemented the recommendations we made in our Report on this topic (Scot Law Com No 151 Part 1 and Part 2) published in 1995.

The current project is focusing on the potential application of Article 5 of the European Convention on Human Rights (the right to liberty) in relation to care arrangements of people who fall within the scope of the 2000 Act.   We are considering whether the Adults with Incapacity (Scotland) Act 2000 should be amended in light of the decision of the European Court of Human Rights in the case of HL v UK (often called the "Bournewood case").  That case involved a person with learning disabilities who had been detained informally in a hospital for psychiatric treatment.   The Court held that there had been a violation of Article 5 of the Convention because the person had not been detained in accordance with a procedure prescribed by law.   In England and Wales specific statutory procedures (called the deprivation of liberty safeguards) have been introduced under the Mental Capacity Act 2005, following the Bournewood case.

Our Discussion Paper was published on 31 July, along with a summary, a news release and an easy-read leaflet.

The Discussion Paper considers the position in Scots law concerning the right to liberty of adults with incapacity in residential facilities. The main questions raised by the Discussion Paper are

●  Is Scots law as it currently stands adequate to meet the requirements of the European Convention in this area?


 If not, how should it be changed?

Following a careful analysis of the responses to the Discussion Paper, we are currently formulating a policy to amend Scots law with a view to publishing a report and draft Bill in 2014.

We are pleased to see that the Discussion Paper has been of interest to colleagues in England (see pages 7 and 8 of the Court of Protection Newsletter, October 2012, prepared by a set of English chambers specialising in these issues ).

For more information, please contact