FREE CHAPTER from ‘A Practical Guide to the Sheriff Court and Protecting Vulnerable Adults in Scotland’ by David W Cobb

26/07/2021

CHAPTER TWO – INCAPACITY AND THE 2000 ACT


For the purposes of the 2000 Act, an “adult” is a person who has attained the age of 16 years [1]. The definition of “incapacity” provided in the 2000 Act is to the effect that it:

“means incapable of–

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions,

as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)” [2].

It will be noted that an adult can meet the definition not merely by having a “mental disorder” but also as the result of a physical disability (for example, an acquired brain injury), which renders communication of wishes and feelings impracticable or impossible.

A “mental disorder” is set out in s.328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) which specifies the following:-

“(a) mental illness;

(b) personality disorder; or

(c) learning disability,

however caused or manifested;” [3].

Section 328 also defines conditions which do not amount to a “mental disorder”, namely:-

“(a) sexual orientation;

(b) sexual deviancy;

(c) transsexualism;

(d) transvestism;

(e) dependence on, or use of, alcohol or drugs;

(f) behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person;

(g) acting as no prudent person would act.” [4].

Consequently, the Code of practice for local authorities issued by the Scottish government under the 2000 Act provides a number of instances where an individual who, for example, receives community care services; has difficulties with speech or writing, or has a poor memory, will not normally meet the criteria to establish “incapacity” [5]. It follows that measures which cannot be authorised under the 2003 Act for reason of absence of a “mental disorder”, equally cannot be authorised under the 2000 Act, unless one or more of the criteria for physical disability are satisfied [6].

It is instructive to compare the definition of “incapacity” given in the 2000 Act with the benchmark provided in England and Wales by the Mental Capacity Act 2005, which states that:-

“A person is not to be treated as unable to make a decision unless all practicable steps to help him have been taken without success” (Emphasis added) [7].

What is made clear by that definition, and it is submitted is also the case in Scotland, is that determining “incapacity” in relation to a given situation or decision does not mandate an all or nothing approach. One simple example is that an adult may not be capable of deciding where to go on holiday, but perfectly capable of deciding what clothes to wear day by day [8]. For that purpose, the bar to be cleared to establish “incapacity” may rest at a somewhat higher level than merely encouraging an adult to use their skills concerning their affairs to the greatest degree possible [9].

As mentioned in the preface, to regard the 2000 Act as being solely concerned with adults who have dementia or a learning disability is to adopt an over narrow approach. In practice, such conditions will be the background to many orders made and actions taken under this legislation, but sight must not be lost of its potential its applicability to other groups.  

However, exercise of any of the powers created by the 2000 Act essentially are contingent upon – in the various manners considered later – an adult meeting the specified test of “incapacity”. To take two examples, the appointment of someone to act under a power of attorney may only be triggered at a point when the granter has become “incapable” [10]. Similarly, the Sheriff may only grant a guardianship or intervention order where satisfied that the adult concerned is:

“incapable in relation to decision about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare, and is likely to continue to be incapable.” [11].

In the present system in Scotland, such assessment primarily will stem from the opinion of a medically qualified practitioner [12]. Ultimately, the Sheriff Court is empowered to determine any dispute as to the “incapacity” of an adult [13].

An example of how the test might be assessed was given by Sheriff Reith in City of Edinburgh Council v D [14].

“In the light of the evidence, including the evidence of the respondent himself, I am satisfied that the respondent can “make” at least some decisions. For example, he has instructed solicitors to represent him in relation to the present applications. He has also “decided” that he does not wish to move to Blackfriars Street. That said, in the light of Dr Carson’s evidence, it may be debatable whether the respondent is really capable of “making” decisions in relation to his interests in his personal welfare in the sense of being able to “form a balanced judgement”, as referred to by Dr Carson. However, in the view of the fact that the respondent can technically “make” decisions, it may be that the respondent’s condition falls more properly under the heading of “understanding” decisions in section 1(6)(d). In my opinion, it is certainly that in any event. I shall therefore proceed on that basis. I would also add that I accepted [the] submission that section 1(6) is not about the quality of decisions, and that the issue is one of “incapacity” and not one of “poor choices”. I have therefore also approached matters on this basis.” [15].

Nevertheless, it is important to recognise that the common law will not necessarily apply the test of the 2000 Act to matters such as capacity to make a will [16].

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NOTES (CHAPTER 2)

  1. 2000 Act, s1(6). It is possible to apply for a Guardianship order three months in advance of a child attaining the age of 16 (2000 Act, s.79A). See Chapter 8 below.

  2. 2000 Act, s.1(6). See FN 7 below.

  3. 2000 Act, s.328. The recent Mental Capacity (NI) Act 2016 does not determine whether an individual has “capacity” only as stemming from a “mental disorder”. (2016 Act, s.1). Whether a “learning disability” or autism should be included as forms of “mental disorder” is disputed in some quarters (See Chapter 24 below)

  4. 2000 Act, s.328.

  5. Code of practice for local authorities, Scottish Government (2008), Chapter 1. Scottish ministers have the power to issue guidance on interpretation of the 2000 Act in the form of Codes of practice to eight specified groups. Where reference is made to a Code of practice in succeeding Chapters, generally it will mean the document relevant to the subject (See also FN 16 in Chapter 3).

  6. See FN 11 below.

  7. Mental Capacity Act 2005, s.1(3).

  8. Another example given in the Code of practice for local authorities is of an adult capable of deciding which electricity supplier to use but unable to manage the mechanics of changing the supplier.

  9. 2000 Act, s.1(5). See Chapter 3 below.

  10. See Chapter 6 below.

  11. 2000 Act, ss. 53 (1) & 58 (1) (a). See Chapters 9 & 14 below.

  12. See Chapter 23 below. In relation to the provision of certain forms of medical treatment, other professionals are entitled to assess whether an adult is “incapable” for that purpose.

  13. 2000 Act, s.14. Decisions of the Sheriff, or on appeal the Sheriff Appeal Court (See Chapter 15 below) can be determined by the Court of Session.

  14. 2011 SLT (Sh Ct) 15.

  15. At para.162.

  16. See Smyth v Romaine’s Execx. [2014] CSOH 150.