The Faculty was responding to a Scottish government consultation on the terms of an updated Draft of the Code of Practice for Continuing and Welfare Attorneys issued under the Adults with Incapacity (Scotland) Act 2000. The law relating to mental capacity and mental disorder is currently under consideration by the Scott Review, which is not due to report until September 2022.

The Faculty recognised the thoroughness with which developments in the law had been addressed in the draft code, and said that this was to be commended pending the implementation of the Scott Review. “It is evident that any recommendations of the Scott Review will not translate into legislation for a considerable time after its report is issued,” said the Faculty.

“There is a concern that the current Code of Practice, issued in 2018, will be considerably outdated if not revised prior to such a point. Not least amongst such concerns will be whether the operation of the 2000 Act remains consistent with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which was ratified by the UK government in 2019, and which the Scottish government intends to incorporate into the domestic law of Scotland as part of a wider Human Rights Bill.”

However, while it viewed the consultation around the draft code as proactive, the Faculty warned that its current level of detail and complexity may prove problematic, given that it was intended to guide individuals who may not have prior professional experience of acting as a continuing or welfare attorney.

“For this reason, comment has been directed primarily towards highlighting where the complexity of the wording potentially militates against the intended purpose,” said the Faculty.