Adults with Incapacity (Scotland) Act 2000
Key legislation-principles and provisions
The Adults with Incapacity (Scotland) Act 2000 introduced a system for safeguarding the welfare and managing the finances and property of any person over 16 years who lacks the legal capacity to do so themselves because of mental disorder or inability to communicate. It explains what is meant by incapacity and sets out the circumstances and the safeguards whereby a local authority social worker or other party such as a relative, friend or carer may obtain powers to enable them to make decisions on behalf of these adults. The Act aims to ensure that solutions focus on the needs of the individual so that decisions are only made on their behalf to the extent that is necessary.
The law sets out the roles and responsibilities of anyone authorised to make decisions on behalf of someone with impaired capacity. According to the Act any decisions made by a guardian: should take into account the views of carers, relatives and people who work closely with the person.
Connection to human rights
Which key Articles of the Convention?
Article 5 - the right to liberty and security of person. This Act provides for the necessary “procedure prescribed by law” under which a person can be detained. Welfare guardians may decide where the adult shall live and/or consent to certain forms of restraint. These powers may only be granted by a court.
Article 8 – the right to respect for private and family life, home and correspondence. This Act provides for interferences with this right to privacy and autonomy. In doing so, it complies with the European Court of Human Rights’ approach to legal capacity in decision making which is functional – “can this individual make this decision at this time?” rather than status based – which would find someone incapable if they have a certain disorder. As with the Convention, and the UN Convention on the Rights of Persons with Disabilities, the Act requires a presumption in favour of capacity, the provision of support to exercise capacity where needed. Any interference with this right must be justified by pursuing a legitimate aim, be based on the law and be the least intervention necessary to achieve the aim and therefore be proportionate.
Article 6 - the right to a fair hearing. The Act provides a process for the making and continuation of guardianship and intervention orders. Such orders impact on the ability of an individual to manage their own affairs. As such they should comply with the right to a fair hearing, including the right to be heard.
Which underlying principles?
The principle of participation in particular is reflected in the Act’s presumption of capacity as well as involvement of carers, relatives and people who work closely with the person.
The principle of proportionality outlined above in relation to Article 8 corresponds with the principle that any decisions made by the guardian must only be taken when really needed and should restrict that person's freedom as little as possible.