Adults with Incapacity Amendment Act: consultation

At present guardianship seems to be accepted as a lawful procedure under the European Convention on Human Rights (ECHR) to deprive a person of their liberty. But concern has been expressed that the voice of the adult is not at the centre of the process.

Section 64 of the Adults with Incapacity Act (AWI Act) sets out the functions and duties of a guardian. We think it is important to add to these functions and duties the position around Deprivation of Liberty (DOL)

Our policy proposal is that specific provision is made whereby, on cause shown, the sheriff can authorise a guardian to place an adult in a setting which may form a DOL.

The cause shown would need to meet ECHR requirements, so

• an independent medical assessment of mental disorder would be needed. The current requirements for medical reports for guardianship applications, as amended by our proposed changes would address this we think
• the placement would need to be time limited, and subject to regular reviews. This should be a combination of regular internal reviews and a time limit placed on the authorisation by the sheriff
• we propose that the initial order should be for a maximum of 12 months, which may on renewal be extended to a maximum of 2 years, in keeping with the requirement for regular reviews of detention. 
• the placement would need to be a proportionate response to the situation the adult is facing. i.e. that it was necessary to safeguard the welfare or health of the adult
• the principles of the AWI Act would still need to be followed, so the will and preferences of the adult would need to be ascertained

A right of appeal will be created, in similar terms to that for placements under a power of attorney, 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

Welfare guardianship orders are subject to a requirement for an annual review by the relevant local authority. This generally consists of a visit from a social worker or mental health officer. We consider however that a placement where an adult is being deprived of their liberty requires a more regular review and are recommending that a review every six months by the local authority should be undertaken for such placements. The adult, and/or any person demonstrating an interest in the welfare of the adult, may also request a review of the placement at any time.