Chapter One: Background, Current Law And Glossary
The Adults with Incapacity (Scotland) Act 2000 ( AWI) introduced a system for safeguarding the welfare and managing the finances and property of adults who lack capacity to make some or all decisions for themselves.
At that time it was widely acclaimed as ground breaking law. But law is ever evolving.
In 2005, the European Court issued its ruling on the Bournewood case.  The ruling in this case made it clear that persons who lack capacity to consent to deprivation of liberty must have the protection of Article 5 European Court of Human Rights ( ECHR)  compliant legal and procedural safeguards. This resulted in scrutiny of the existing AWI provisions and their compatibility with Article 5. Concerns were, and continue to be expressed that the current AWI regime is not adequate to meet Article 5 requirements.
In 2009 the UK Government ratified the UN Convention on the Rights of Persons with Disabilities ( UNCRPD). The Scottish Government is committed to fully implementing the convention. A number of practitioners, stakeholders and academics have offered the view that the AWI Act as it currently stands is not fully compliant with the UNCRPD.  In particular it has been suggested that a greater focus on support for exercising legal capacity is needed.
In 2011 the Public Guardian, after operating under the AWI for 10 years proposed a system of graded guardianships, which sought to address the issue of one size of guardianship attempting to fit all, which is not in-keeping with the principle of least restriction required by the Act.
In 2014, the UK Supreme Court issued a judgement in the case of P v Cheshire West  which clarified that there is a deprivation of liberty for the purposes of Article 5 ECHR where ‘the person is under continuous supervision and control and is not free to leave and the person lacks capacity to consent to these arrangements’. The effect of this decision is that the vast majority of adults with cognitive impairment who are presently detained in care homes and hospitals in Scotland (other than those who are subject to compulsory treatment authorised by the Mental Health (Care and Treatment) (Scotland) Act 2003  (the 2003 Act) could be regarded as deprived of their liberty and, unless subject to an underlying legal process, could be seen as causing a breach of rights under Article 5 ECHR.
Scottish Law Commission report
Following the decision on Bournewood, the Scottish Law Commission, which had prepared the Report on Incapable Adults  which led to the AWI Act, was approached by a number of bodies including the Mental Welfare Commission, ENABLE Scotland and the Mental Health and Disability Subcommittee of the Law Society of Scotland to examine the implications of this decision for the law in Scotland. The matter was included in their eighth programme of Law Reform and resulted in the Report on Adults with Incapacity in 2014. 
This report focussed on issues around deprivation of liberty for persons lacking in capacity. In making their recommendations, the Commission assessed recent case law from the European Court of Human Rights, and courts within the UK, including the Cheshire West decision, to identify the circumstances in which a placement in residential care accommodation or restrictions placed on a person in hospital for treatment or assessment would constitute a deprivation of liberty and must be authorised in law to comply with Article 5 ECHR.
The Commission recommended measures to prevent a person from leaving hospital, whether that person is in hospital for treatment or assessment, where the medical practitioner is of the view that the person is incapable of making decisions as to whether to leave hospital or not, and measures to authorise a significant restriction of the liberty of an incapable adult within a community setting by means of a ‘statement of significant restriction’. 
The Scottish Government consulted on this report at the start of 2016. The main themes emerging from this consultation were:
- There is a compelling need to ensure a lawful process is in place for those persons who may need to be deprived of their liberty in community or hospital settings and lack capacity to agree to such a placement.
- The changes proposed by the Scottish Law Commission would result in a huge workload for an already pressurised system and workforce.
- Any changes to the law should take place within the context of a wider revision of AWI legislation.
In addition, the consultation paper sought views on what changes, if any, should be made to the current legislation. The most popular areas for change were:
- A move to a form of graded guardianship.
- Consideration of a change of jurisdiction for AWI cases from the Sheriff Courts to a tribunal.
- Creation of a short term /emergency placement order that can be used at short notice.
- Consideration of changes needed to implement the UNCRPD.
Scottish Government officials have worked with stakeholders and service users to develop these proposals for change, and this consultation paper sets out a number of detailed recommendations for reform of the legislation and seeks views on these and further areas for change.
Adults are presumed to have capacity to make decisions about their own lives. But sometimes a lack of capacity to make decisions about one’s life can occur, due to any number of factors, such as an acquired brain injury, neurological condition, mental illness or learning disability. At present, the largest group of people in Scotland who lose capacity do so as a result of dementia.
But a lack of capacity does not mean a person has no understanding of what is going on in their lives. And it certainly does not mean that a person lacking in capacity should not be fully involved in life decisions about them. The Adults with Incapacity (Scotland) Act sought to ensure decisions could be made for people when they were no longer able to take those decisions for themselves, but this should only happen when it will benefit the adult and such benefit cannot be reasonably achieved without the intervention. And in any action under the AWI Act, the present and past wishes and feelings of the adult should be taken account of.
How does the legislation work at present?
The AWI Act aims to help adults over the age of 16 who lack capacity to make some or all decisions for themselves. It covers people whose incapacity is caused by a mental disorder, such as severe dementia, learning disability, acquired brain injury or severe mental illness. It also covers people who are unable to communicate due to a physical condition such as a stroke.
The Act introduced arrangements for making decisions about personal welfare and managing the finances and property of individuals whose capacity to make or carry out specific decisions is impaired. It allows carers and others to have authority to do so on their behalf.
The law in Scotland presumes that persons over the age of 16 are capable of making personal decisions for themselves and of managing their own affairs. That presumption can only be overturned if there is evidence that the person lacks capacity to make a decision.
We must remember however that having a diagnosis of, for example, dementia does not mean that a person is necessarily unable to make decisions for themselves.
What incapacity means under the AWI Act
The AWI Act recognises that a person may be legally capable of some decisions and actions and not capable of others. The Act says that a person lacks capacity to take a particular decision or action when there is evidence they are unable to do so.
For the purpose of the AWI Act incapable means incapable of
- Acting on decisions; or
- Making decisions; or
- Communicating decisions; or
- Understanding decisions; or
- Retaining the memory of decisions
in relation to any particular matter due to mental disorder or inability to communicate because of physical disability.
This means no one should be treated as unable to make or act on decisions unless all practical steps have been taken to assist him or her.
The Act offers the following ways for managing and safeguarding a person’s welfare, financial affairs or both:
Power of attorney (Part 2)
This is a means by which individuals, whilst they still have capacity, can grant someone they trust powers to act as their financial (known as continuing) attorney and/or their welfare attorney in case capacity is lost at some future point.
Access to funds scheme (Part 3)
This is an administrative application to The Office of the Public Guardian ( OPG) to access the funds of the adult in order to meet his/her living costs.
Welfare and /or financial guardianship order (Part 6)
This can be applied for by one or more individuals acting together or by the local authority and is granted by the Sheriff. This is appropriate where the adult requires someone to make specific decisions on his/her behalf over the long term.
Intervention order (Part 6)
This may be applied for by an individual or a local authority and granted by the Sheriff to carry out a one off action or to deal with a specific issue on behalf of the adult.
Management of care home/ hospital residents’ fund (Part 4)
A certificate of authority may be granted to a care home manager or hospital manager by the supervising body (Care Inspectorate or health board) where the resident lacks capacity to manage his/her own funds and there is no other arrangement in place.
Medical treatment decisions (Part 5)
A doctor is authorised to provide medical treatment to someone who is unable to consent subject to certain safeguards and exceptions. In addition, certain other health care practitioners, if accredited to do so, have authority to provide treatments which they are qualified to administer.
Medical research (Part 5)
Medical research involving adults who cannot consent is authorised subject to safeguards and conditions.
Principles to be followed (Part 1, s.1)
The AWI Act is underpinned by principles which anyone taking action under the Act must apply when deciding which measure under the Act will be the most suitable for meeting the needs of the individual. The principles must also be used whenever decisions need to be made on behalf of the adult. The Act aims to protect people who lack capacity to make particular decisions but also to support their involvement in making decisions about their own lives as far as they are able to do so.
Principle 1 – benefit
Any action or decisions taken must benefit the adult and only be taken when that benefit cannot reasonably be achieved without it.
Principle 2 – least restrictive option
Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person’s freedom as little as possible.
Principle 3 – take account of the wishes of the adult
In deciding if an action or decision is to be made, and what that should be, account shall be taken of the present and past wishes and feelings of the adult as far as they can be ascertained. The adult should be offered appropriate assistance to communicate his or her views.
Principle 4 – consultation with relevant others
In deciding if an action or decision is to be made, and what that should be, account shall be taken of the views of the nearest relative and the primary carer of the adult, the adult’s named person, any guardian or attorney with powers relating to the proposed intervention, and any person whom the Sheriff has directed should be consulted, in so far as it is reasonable and practicable to do so.
Principle 5 – encouraging the adult
Any guardian, attorney, or manager of an establishment exercising functions under this Act shall in so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills he or she has concerning property, financial affairs or personal welfare as the case may be and to develop new such skills.
Glossary Of Terms
“2003 Act” – The Mental Health (Care and Treatment) (Scotland) Act 2003
“Advocacy” - Advocacy means getting support from another person to help the adult express their views and wishes, and to help make sure their voice is heard. Someone who helps an adult in this way is called an advocate
“ ATF” – Access to Funds. This is a scheme operated by the Office of the Public Guardian to access an incapacitated adult’s funds
“Article 5 ECHR” – Article 5 of the European Convention on Human Rights relates to the right to liberty and security. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in certain cases and in accordance with a procedure prescribed by law
“ AWI” – The Adults with Incapacity (Scotland) Act 2000
“Care Inspectorate” - The Care Inspectorate regulates and inspects care services in Scotland to make sure that they meet the right standards. They jointly inspect with other regulators to check how well different organisations in local areas work to support adults and children
“Court of Session” - The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh, and is both a trial court and a court of appeal
“ ECHR” – The European Convention on Human Rights
“ ECtHR” – The European Court of Human Rights. This is an international court established by the European Convention on Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. An application can be lodged by an individual, a group of individuals or one or more of the other contracting states, and, besides judgments, the Court can also issue advisory opinions. The Convention was adopted within the context of the Council of Europe, and all its 47 member states are contracting parties to the Convention. The Court is based in Strasbourg, France
“ ENABLE Scotland” - A Scottish charity, working for an equal society for every person who has a learning disability
“Essex Autonomy Project” - The Essex Autonomy Project is a collaborative, interdisciplinary research initiative based at Essex University in the School of Philosophy and Art History. It was founded in 2010 and work with academic researchers, practitioners and policy-makers across the UK. They completed a report in January 2017 titled ‘Three Jurisdictions Report: Towards Compliance with CRPD Art-12 in Capacity/Incapacity Legislation across the UK’
“European Court” – The European Court of Justice, or ECJ. The highest court in the European Union in matters of European Union law. It is tasked with interpreting EU law and ensuring its equal application across all EU member states
“Faculty of Advocates” - The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary. The Faculty of Advocates is a constituent part of the College of Justice and is based in Edinburgh
“Law Society of Scotland” - The professional governing body for Scottish solicitors. It promotes the interests of the public in relation to the profession. The Society helps to shape the law for the benefit of both the public and the profession
“Mental Health Officer” - A mental health officer is a social worker who has special training and experience in working with people who have a mental illness, learning disability or related condition
“ MHTS” – The Mental Health Tribunal for Scotland
“ MWC” – The Mental Welfare Commission
“ OPG” – The Office of the Public Guardian
“Section 22 Doctor” - A section 22 doctor is a medical practitioner approved by the local health board, or the State Hospital’s Board for Scotland for the purposes of section 22 of the Mental Health (Care and Treatment) Scotland Act 2003 as having special experience in the diagnosis and treatment of mental disorder
“Sheriff Appeal Court” - The Sheriff Appeal Court hears appeals from summary criminal proceedings in the Sheriff Courts and justice of the peace courts, and hears appeals on bail decisions made in solemn proceedings in the Sheriff Court. The Sheriff Appeal Court also hears appeals in civil cases from the Sheriff Courts, including the Sheriff Personal Injury Court
“The Commission” – The Scottish Law Commission ( SLC). The Commission is Scotland's law reform body. It was established under the Law Commissions Act 1965 to make recommendations to Government to simplify, modernise and improve Scots law
“ UK Supreme Court” - The Supreme Court of the United Kingdom is the supreme court in all matters under English, Welsh, Northern Irish law and Scottish civil law. It is the court of last resort and the highest appellate court in the United Kingdom, although the High Court of Justiciary remains the court of last resort for criminal law in Scotland
“ UNCRPD” – The United Nations Convention on the Rights of Persons with Disabilities
“Upper Tribunal for Scotland” - The Upper Tribunal for Scotland hears appeals on decisions of the chambers of the First-tier Tribunal
References to legislation - all references to sections of legislation are to sections of the AWI act unless otherwise stated