Adults with Incapacity Amendment Act: consultation
Stand-alone right of appeal
In its 2014 report the Scottish Law Commission recommended a stand-alone right of appeal against any detention which could be assessed as being unlawful. We agree with this proposal.
As said earlier in this part, we consider that if a person is able with support to express their will and preferences, and agree to remain in their current living environment, even if such an environment forms a Deprivation of Liberty (DOL), then no further judicial oversight is required. However, if this situation should change then the adult needs to have a means of addressing this.
We would hope that regular internal reviews, and dialogue with the adult, supporting them to express their will and preferences would ensure steps could be taken quickly should the adult no longer be content with their placement. However that cannot be guaranteed, and we consider a stand-alone right of appeal against a DOL is needed for such scenarios.
As with the appeal proposed against placements under a power of attorney and a guardianship order, an appeal should be able to be raised by any person demonstrating an interest in the adult. And the appellant will have to demonstrate how the will and preference of adult has been obtained.