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Commission calls for major reform of laws to protect people with learning disability or dementia

Publication date: 31 Mar, 2016

The Mental Welfare Commission has today called for a comprehensive review of the legislation which protects people who are not able to make decisions on their own. This particularly affects people with a learning disability or dementia.

The Commission believes that the current system is too expensive and bureaucratic, and has not kept pace with developments in human rights.

Colin McKay, chief executive, Mental Welfare Commission, said:

"The Adults with Incapacity Act was one of the very first Acts of the new Scottish Parliament, in 2000. At the time, it was a major advance in protecting the rights of adults if they are not able to make decisions about their care and welfare. But it urgently needs reform.

"We are particularly concerned about the increased use of the courts - applications for welfare guardianship rose 16% in 2014-15, and have gone up by 84% since 2009-10.

"This puts unsustainable pressure on local authorities and the legal system. Recent legal rulings mean this is only likely to get worse. But most importantly, it isn't the best way to protect people with impaired decision-making ability, and to ensure their wishes and welfare are at the centre of the system."

The Commission proposes a new, flexible, system which would reduce the need for families or friends to go to court when loved ones are unable to protect their own interests.

Key features of the new system include

  • A new role of 'supporter' to assist the adult to make choices for themselves, and to ensure their wishes are central to any decisions about them
  • A more rigorous process for making decisions about care which may impact on someone's human rights (such as being under constant supervision in a care home, or being unable to leave unaccompanied).

Details of the Mental Welfare Commission's proposals are contained in its response to a consultation on the Scottish Law Commission Report on Adults with Incapacity, which was submitted to government today.


Notes for Editors

The Scottish Law Commission report on Adults with Incapacity was in response to decisions of the European Court of Human Rights and the UK Supreme Court which suggested that many people in hospitals and care homes who cannot consent to their care and treatment are being deprived of liberty under Article 5 of the European Convention on Human Rights - even if the care is entirely appropriate and they are not objecting to it. This means that a legal process is necessary to authorise that deprivation of liberty.

The Scottish Law Commission proposals include:

  • a new power for doctors to authorise detention in hospital
  • a new process whereby welfare guardians or welfare attorneys could authorise 'significant restrictions of liberty' in care homes. If a person does not have a welfare guardian or welfare attorney, the authorisation would be by the sheriff court.

The Mental Welfare Commission response argues that this new procedure will be expensive and bureaucratic, and will not cover all the situations where a person's human rights have been affected. It proposes an alternative system of 'graded guardianship', which takes account of the UN Convention on the Rights of Disabled Persons, and seeks to ensure that human rights are taken into account in all care decisions affecting people with impaired decision-making ability.