Next month sees the 7th World Congress on Adult Capacity take place in Edinburgh for the very first time. Scotland is the smallest country (and Edinburgh is only the second European city) to host the Congress. This gathering brings together incapacity experts from across the globe, with delegates expected from over 30 countries and 6 continents. The aim is to facilitate international cooperation and knowledge sharing in a continually evolving area of law.

The current law and proposed reforms in Scotland

The Adults with Incapacity (Scotland) Act 2000 (the "2000 Act") sets out the framework for safeguarding the rights and interest of adults who lack capacity in Scotland. At the time of its introduction into law, it was considered a progressive and world leading piece of legislation. However, the world has moved on considerably since then and there are now doubts in some quarters about whether the 2000 Act has kept pace. Specifically, there are concerns that the 2000 Act doesn’t comply with the right to liberty and security under Article 5 of the European Convention on Human Rights; or with the UN Convention on the Rights of the Persons with Disabilities. Extensive reforms to the current law are proposed.

Congress themes

The Congress runs over 3 days and discussions will focus on the move from simply safeguarding against unnecessary intrusion in the rights of those with mental disabilities, towards supporting and promoting the exercise of capacity. The key is that the law must aim to strike a difficult balance between the protections and freedoms of those suffering from mental disabilities; and facilitating "supported decision making" in helping those with mental disabilities to exercise their capacity. The idea is that people should be empowered to make their own decisions where at all possible, rather than relying on someone else to step into their shoes.

A Scottish focus

The Congress places an international focus on Scotland, its legal system and its evolving approach to an increasingly significant area of law. The issue of incapacity will affect most of us at some point during our lifetimes and discussions like these are vital to ensure that new and better ways of protecting personal autonomy in incapacity continue to be explored.

Dementia Awareness Week 2022

The Congress is fittingly timed and follows Dementia Awareness Week, our charity partner Alzheimer Scotland's annual dementia awareness campaign (running from 30 May – 5 June). Two of the key themes emerging from the 2022 campaign are "prevention and care". These are principals we can apply to ourselves and our families in the context of incapacity planning. The event, and this year's dementia awareness campaign, serve as important reminders to all of us: to think about the future and the ways in which we can prevent against loss of autonomy and care for ourselves in the event of our incapacity. We can - and should - encourage our families to do the same.

Incapacity planning now allows us to retain control over our lives and important decisions affecting us in the future. By starting conversations with our loved ones now, we can also better protect the people we care about most.

Brodies have specialists in all areas of the law related to adult incapacity. If you have any queries about incapacity or planning for the future, please get in touch with one of our experts for a confidential discussion.