Adults with Incapacity Amendment Act: consultation

The Scottish Mental Health Law Review proposed that a power of attorney (POA) with prescribed wording, may grant advance consent for the attorney to deprive the granter of their liberty, where the deprivation is proportionate and will demonstrably lead to more respect, protection and fulfilment of the person’s rights overall.

We agree with this, but the proposal needs further detail. In Part 1 of this consultation, we have set out the changes that will be taken forward in any future law amending the Adults with Incapacity Act (AWI Act). One of these changes is to require that in creating a power of attorney, the granter must set out how a determination of their incapacity should be decided.

If the power of attorney is to include advance consent to deprive the granter of their liberty, we propose that this incapacity will require to be determined by independent medical assessment.

Section 16(3) of the AWI Act set outs the terms that need to be met to ensure the validity of a welfare power of attorney. We suggest that this be amended to reflect the wording required for a power of attorney to authorise a Deprivation of Liberty (DOL) of the granter and that if the required wording is not followed, the POA cannot validly authorise a DOL.

The exact wording will be considered. We anticipate that any Bill will contain a power for Ministers to specify the wording by regulations and this will be consulted upon at a later date, but we consider that the following factors will need to be reflected in the wording:

• the granter has considered the circumstances in which it might be necessary to restrict their liberty or deprive them of their liberty, in order to safeguard their health or welfare, or that of others
• the terms of article 5 of the European Convention on Human Rights (ECHR) have been explained to the granter
• authority is given to the attorney/s alone
• the attorney must be satisfied the action is necessary to safeguard the health or welfare of the granter
• the attorney must act in accordance with the principles of the AWI Act
• the attorney will be subject to any directions of the court following any application under section 3 (3) of the AWI Act

This last point is particularly important. We propose that where an adult, having previously granted advance consent for their attorney to deprive them of their liberty, later objects to the consent being acted on, and their being moved to a setting where their liberty is restricted or deprived, the attorney, or any other person with an interest in the adult’s welfare must seek a determination from the Sheriff under section 3(3) as to the appropriate way to proceed.

Appeal and Review

As stated above any process to deprive an adult of their liberty must be challengeable in a practical and accessible way. So, we suggest that an appeal may be made to the sheriff court, by any person demonstrating an interest in the welfare of the adult.

The grounds for appeal should be that the placement is not necessary to safeguard the health or welfare of the granter. In keeping with the proposed amended principles of the AWI Act as set out in part 1 of this consultation, there would be a requirement on the person raising the appeal, to demonstrate what steps had been taken to ascertain the views of the adult. The sheriff would also have the option of appointing a safeguarder (the position of safeguarders and curators is set out later in this part.) 

Review of the placement

In keeping with the principles of the AWI Act it is important to ensure that an adult is subject to the least restrictive option in relation to the freedom of the adult consistent with the purpose of the intervention. So, an adult deprived of their liberty should only be subject to these restrictions for the minimum time necessary. To that end regular reviews of the placement/ restrictions will be needed. And such regular reviews are also needed to meet ECHR requirements.

We are seeking views on how regular reviews can be carried out. At present the local authority is obliged to review guardianship orders every 12 months. There is no such requirement for powers of attorney. Whilst there is a balance to be struck between ensuring the safety and wellbeing of an adult, and recognising that, in the case of a power of attorney, actions are carried out in accordance with the adult’s specific instructions, when it comes to an individual being deprived of their liberty it is essential to ensure this situation is not abused in any way.