Faculty puts forward possible changes to incapacity legislation

Proposals for reform have been put forward by the Scottish government in a consultation document, and in its response, the Faculty agreed that “this is a convenient time at which to review the operation of the 2000 Act in light of developments both domestic and international.”

One international development has been the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which the Faculty said required a “paradigm shift” in the treatment of persons with a disability.

“There is not sufficient emphasis placed upon the will of the adult in the present regime…The view of the Faculty is that the requirement of Art 12 of UNCRPD to ensure that safeguards are ‘proportional and tailored to the person’s circumstances’ cannot be fulfilled without further express provision,” the response stated.

Another area covered by the consultation is powers of attorney, and the Faculty suggested that the act did not meet the requirements of Art 5 (right to liberty) of the European Convention on Human Rights if deprivation of liberty was to be authorised by the attorney. The Faculty supported supervision of the process by a judicial body, whether court or tribunal.

In further comments, the Faculty backed a separate concept of significant restriction of liberty as distinct from deprivation of liberty, and agreed with a proposal for a three grade guardianship system rather than the current one size of guardianship attempting to fit all.