Adults with incapacity
Laura Dunlop, QC
Heike Gading, Project Manager
Susan Robb, Solicitor
On 1 October 2014 the Commission published a Report on Adults with incapacity including a draft Bill (Scot Law Com No 240).
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 recommendations of the Commission in an earlier Report on this topic (Scot Law Com No 151 Part 1 and Part 2) published in 1995.
The Commission, as part of the Eighth Programme of Law Reform, considered the question 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 European Convention on Human Rights 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. In March 2014 the Supreme Court of the United Kingdom set out a specific test for what constitutes a deprivation of liberty in this context. [P v Cheshire West and Chester Council, P and Q v Surrey County Council].
The Commission recommends in its Report in October 2014 that the Adults with Incapacity (Scotland) Act 2000 should be amended to include a legal process to authorise measures preventing an adult from going out of a hospital and a more detailed legal process for the scrutiny of significant restriction of liberty of an adult in a care home or other placement in the community. Further, the Act should also be amended to provide for a right to apply to the sheriff court for release of an adult who may lack capacity from unlawful detention in certain care settings.
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