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Mental health focus of major law conference

20 March 2014 | tagged News release

The Law Society of Scotland is to co-host a major conference which will reflect on the law relating to mental health and incapacity and whether it is working as well as it can for those it is designed to protect.

The two-day conference, hosted in conjunction with the Mental Welfare Commission for Scotland and the Equality and Human Rights Commission, opens on Friday, 21 March in St Andrews It is the first of its kind in Scotland since the introduction of the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003. The conference will closely examine if these two major pieces of legislation remain effective a decade on, and if improvements still need to be made.

May Dunsmuir, Vice Convener of the Society's Mental Health and Disability Committee, said: "This is an ambitious conference. There has been major law reform in Scotland. We now want to reflect on how this has been working in practice and explore if there are sufficient legal safeguards for those the law is designed to protect. There is ongoing reform of the Scottish courts and tribunal systems, which will hopefully introduce a more consistent approach to the delivery of and access to justice for some of the most vulnerable people in Scotland. Case law in both jurisdictions is also constantly evolving, so this is an opportune time to examine the law and identify where we think there may be scope for further reform.

"We will explore topical issues such as the question of what amounts to a deprivation of liberty and whether the law is clear in this respect. For example, can a son or daughter who has been granted welfare powers of attorney authorise placing an elderly parent, who no longer has capacity, in a residential care home - or does this require to be explicitly specified in the range of powers authorised in the power of attorney document? Power of attorneys also give rise to startling problems, highlighted in a recent House of Lords report, in having Scottish power of attorney's recognised and respected in England and Wales. The conference will explore the reasons and the solutions."

Delegates, who include solicitors, medical, mental health and social work professionals, as well as carers and service users will discuss a range of issues including deprivation of liberty; the Mental Health Tribunal and legislative reform; will making and capacity and beyond; vulnerable clients; incapacity and significant impairment of decision-making ability; cross-border issues in the incapacity and mental health jurisdictions and apparent errors in Scottish Government guidance to local authorities about social work responsibilities when people move from one area to another.

The conference follows publication of three Law Society guides last year, which were designed to support Scottish solicitors in meeting the needs of every client.

The guide Ensuring fairness and creating more accessible services assists solicitors to comply with the Equality Act 2010 when providing services for people with a disability. According to Law Society research, around a third of households in Scotland (34%) contain at least one person with a long-standing illness, health problem or disability. In recognition of this important group, the Law Society asked Capability Scotland to develop a guide to assist solicitors who work with clients who have a disability.

The Society also updated its guidance on Continuing and welfare powers of attorney following recommendations from the Mental Welfare Commission for Scotland and created entirely new Vulnerable clients guidance to help solicitors respond to clients who may be at risk of impaired capacity or possibly subject to undue influence.

ENDS                          20 MARCH 2014

Notes to editor

FOR FURTHER INFORMATION: Please contact Val McEwan on 131 226 8884. Email:

20 March 2014

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