Faculty calls for reforms to incapacity law

Improvements to the Adults with Incapacity (Scotland) Act 2000 have been suggested by the Faculty of Advocates in a substantial response to the Scottish Government's consultation on modernising the legislation.

Faculty believes the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) requires 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 article 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 states.

On powers of attorney, Faculty suggests that the Act does not meet the requirements of article 5 (right to liberty) of the European Convention on Human Rights if deprivation of liberty is to be authorised by the attorney. It supports supervision of the process by a judicial body, whether court or tribunal.

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