Adults with Incapacity Amendment Act: consultation

Section 9 of the Adults with Incapacity Act (AWI Act) sets out the specific functions of the Mental Welfare Commission (the MWC) in relation to any adult to whom the AWI Act applies by reason of mental disorder. That is, the MWC has no role in relation to adults whose incapacity results solely from inability to communicate.

Currently the MWC must consult the Public Guardian and any local authority on cases or matters relating to the exercise of the AWI Act where there is, or appears to be a common interest; if the MWC is not satisfied with any investigation made by a local authority, into a complaint made under section 10 of the AWI Act, or where the local authority have failed to investigate the complaint the MWC may investigate complaints relating to the personal welfare of the adult made in relation to welfare attorneys, guardians or persons authorised under intervention orders.

The Scottish Mental Health Law Review recommended that the MWC may intervene if they have concerns, in cases where an adult has with support, expressed a will and preference to remain in their current living arrangements, even if those arrangements constitute a DOL.

We agree with this but we think the role of the MWC should be extended to permit them to investigate any placement where an adult is deprived of their liberty under the AWI Act, if concerns are raised with the MWC by any person having an interest in the adult’s welfare, or by the MWC  themselves in the course of a visit to the adult from a Commission visitor, under section 13 of the Mental Health ( Care and Treatment)(Scotland) Act 2003.