Reforming the law on adults with incapacity in Scotland has been high on the wish list for legislative change for some time now. There have been concerns that adults lacking capacity were being confined to hospitals and care homes in a manner incompatible with their right not to be deprived of their liberty (Article 5 of the European Convention on Human Rights).

In October 2014, the Scottish Law Commission published a Report on Adults with Incapacity which focused on deprivation of liberty issues. This led to a widespread review of working practices by a range of public authorities, including NHS boards and local authorities. However, public authorities can only work within the confines of existing legislation, which may itself fall short of providing suitable mechanisms for authorising a deprivation of liberty.

The Scottish Government has now taken up the mantle and has launched a consultation on some of the proposals in the Commission's report, including its draft Bill. The Government is also inviting wider comments on the main piece of legislation in this field, the Adults with Incapacity (Scotland) Act 2000.

The Scottish Government has not yet taken a view on the Commission's recommendations or even whether reform is necessary, but it is seeking views from stakeholders on the suggested authorisation processes for adults in various types of care settings - hospital and community based. There are also proposals for a new power for sheriffs to make an order for cessation of unlawful detention, where an adult is in a care home and that placement has not been authorised under the existing legal processes.

An issue that we frequently encounter in practice is the absence of specific mechanisms designed to deal with situations giving rise to a deprivation of liberty. With the best will in the world, local authorities and health bodies are often unsure how to safeguard the rights of adults lacking capacity. While practitioners, authorities and the courts have found pragmatic solutions to deal with this, we know that many of our clients would welcome the certainty of defined procedures.

Responses to the consultation are invited by 31 March 2016. If you have an interest in this area and would like to discuss the proposals in more detail, please do feel free to get in touch.