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Publication - Consultation Paper

Adults with incapacity ( Scotland ) Act 2000: proposals for reform

Published: 31 Jan 2018
Part of:
Equality and rights, Health and social care

A consultation on proposed reforms to the law that makes provision for the welfare of adults who are unable to make decisions by reason of incapacity.

72 page PDF


72 page PDF


Adults with incapacity ( Scotland ) Act 2000: proposals for reform
Chapter Eight

72 page PDF


Chapter Eight

Forum For Cases Under Adults With Incapacity Legislation

As previously noted, the UNCRPD emphasises that every available support should be given to a person with a mental disability to maximise their decision making ability.

This support should continue through the adult’s life and especially when consideration is being given to appointing a guardian with powers to act on behalf of the adult.

We want to improve the participation of adults and interested parties in the guardianship appointment process. We think that the environment for a hearing should be welcoming and more accessible to all interested parties, particularly the adult who is the subject of the application.

We think that the key features of the forum for appointment of guardianships should include:

  • Informality
  • An approach which maximises the participation of the adult (although this need not always be at the hearing itself)
  • An awareness of the needs of people with mental disorders
  • A consistent approach across Scotland
  • The development of the case law

At present the forum for all guardianships is the Sheriff Court. Part of our AWI reform proposals are graded guardianships. So we need to consider the appropriate forum for each grade of guardianship. In earlier consultations and at stakeholder meetings, we have been asked to consider using the Mental Health Tribunal for Scotland ( MHTS) as an alternative forum for cases under the Adults with Incapacity legislation. We are therefore proposing two models with the Sheriff Court on one side and the Mental Health Tribunal on the other.

We should say at this point that should the decision be made to transfer cases under the AWI legislation to the Mental Health Tribunal for Scotland, consideration will be given to changing the name of the tribunal, as well as the membership to more accurately reflect the range of work the MHTS would be undertaking.

We propose that grade one guardianship applications should be considered by the Office of the Public Guardian. Thereafter we propose:

1. A Sheriff considering grade 2 applications in chambers and a Sheriff conducting a full hearing for grade 3 applications: or

2. A Mental Health Tribunal legal panel member considering grade 2 applications and the existing 3 member Mental Health Tribunal considering grade 3 applications

The process is summarised by the flowchart below:


Grade 1

At grade 1 we propose that the Office of the Public Guardian should process applications.

OPG staff have a lot of experience already in processing applications under the AWI Act for powers of attorney, access to funds, intervention orders and guardianships and staff are well trained at doing this.

We think that there should be no discretion on OPG at grade 1 to make judicial type decisions and therefore OPG duties would be to look at whether the application meets the requirements in the legislation for registration, much like they do with power of attorney applications.

We expect that there might be a lot of advice and guidance needed for members of the public to complete the grade 1 application form. OPG are experienced in providing advice and guidance and have a direct equivalent in assisting the public to complete forms for Access to Funds.

OPG will be able to refer the case to grade 3, if there is any opposition to the application, including from the Public Guardian.

We are proposing an administrative process, to ease the pressure on the system for simpler cases. However we are also aware that we are trying to get greater participation from the adult and interested parties. Therefore we are proposing that if any of the parties requests a hearing, that will be granted automatically at grade 3.


Do you think that using OPG is the right level of authorisation for simpler guardianship cases at grade 1? Please give reasons for your answer.

Grade 2

For grade 2 applications we propose that either a legally qualified member of the Mental Health Tribunal would consider the application on the basis of the paper application or a Sheriff sitting in chambers would consider it in a similar way to undefended civil actions at present.

We think this will provide an appropriate level of legal scrutiny for cases at this grade as well as providing a more efficient process, minimising delays that can cause difficulties for people in the current system.

Again, we propose that if any of the parties request a hearing, that it will be granted automatically and a hearing like those for grade 3 cases will be held.

Grade 3

The options for grade 3 applications would be a hearing in front of the Mental Health Tribunal, or a hearing in front of a Sheriff.

Factors For Consideration

We think there are a number of factors which should be considered when coming to a view on which would be the best forum at grades 2 and 3:

The ‘one door’ approach

It is useful to look at the Scottish Law Commission’s ( SLC) report of 1995 [16] , which was influential in shaping the AWI Act. At the time of the report the Sheriff Court dealt with the majority of orders affecting the welfare or finances of incapacitated adults. The Commission was strongly in favour of the ‘one-door approach’ where ‘people should not be required to go to several different courts or tribunals to obtain the desired spread of remedies’. This was a major factor in their recommendation of the Sheriff Courts.

The situation has changed now in that some matters that were previously dealt with by the Sheriff Court are now dealt with by the Mental Health Tribunal under the Mental Health (Care and Treatment) (Scotland) Act 2003. There are 2 different bodies dealing with mental health legislation in Scotland at present.

Presently Mental Health legislation in Scotland is spread between 3 Acts; the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adult Support and Protection (Scotland) Act 2007. There is some enthusiasm to fuse this legislation in the future into a single Act, however in the shorter term it might be advantageous for all of the above orders to go through the same forum, beginning with the AWI Act and the 2003 Act.


Courts: At present guardianship hearings are held in courtrooms in the 39 Sheriff Courts in Scotland. It will be the court closest to where the adult resides. Generally these hearings are held in private and a small number of hearings are held in Sheriff’s chambers. Normally there is a solicitor present who is putting forward the application and occasionally a solicitor will represent interested parties, including the adult.

Presently the court rules allow the Sheriff, where he or she considers it appropriate taking into account all circumstances, to appoint that a hearing should take place in a hospital, or any other place than the court building, or in private. Given the requirements of the UNCRPD we expect that going forward there would be a greater emphasis on these options in order to encourage the adult and interested parties to attend. The courts also have video technology available to enable evidence to be given remotely.

Mental Health Tribunals: Presently mental health tribunals are held in hospitals or community venues across Scotland. There are approximately 80 such venues. The venue will be the closest to where the person resides. A mental health tribunal at present solely focusses on matters arising from the Mental Health (Care and Treatment) (Scotland) Act 2003.

These tribunals consist of a 3 member panel, made up by a legal member (solicitors), a medical member (psychiatrists) and a general member (from a broad variety of mental health professional backgrounds – such as nurses, psychologists, mental health officers – or with a background as a mental health service user or carer for such a person). They sit around a table with a mix of the adult, solicitor, doctor, community psychiatric nurse and advocacy worker. The hearing is held in an inquisitorial manner, where the Convener asks each party for their opinion, asks the other panel members to ask any questions and then comes to a decision. The panel can continue the hearing to ask for further reports. The tribunals also have video technology available to enable evidence to be given remotely.


The Scottish Law Commission report on Incapable Adults in 1995 , felt that the courts had the benefit of continuity over any new tribunal system. That would remain the case now but given the MHTS has been established for over 10 years, the same argument could be said to apply to the MHTS.

Make up of Panel/Court

The tribunal panel is made up of a legal convener, a medical expert (a doctor) and a lay person (who has generally worked in the health field). This allows a greater perspective on the case and all parties are focused on mental health. The panel is less likely to be versed in financial matters. The legal convener may have some prior experience of financial matters.

Applications under the AWI legislation form a small percentage of the civil business for sheriff courts. This can mean sheriffs in more rural areas may deal with only a handful of such cases in a year. There are a number of sheriffs who specialise in AWI matters, and a number of courts now run specialised AWI hearings but at present these are mainly in the larger city centres.


In terms of training, the MHT is solely focused on mental health matters. At present it receives input from organisations providing advisory services enabling the tribunal to provide a service which is focused on the care and treatment of the patients who come before the tribunal. The tribunal members would require training on financial matters and the different requirements of the AWI legislation and UNCRPD.

In the event of AWI matters remaining within the court system, we would anticipate additional training being provided for sheriffs on the requirements of the UNCRPD and how best to facilitate those requirements within the court system. The Judicial Institute which provides training for the judiciary has a well established reputation for not just legal training but specific skills training required for the judiciary such as court and case management, and has developed modules on matters such as diversity awareness and equal treatment so would be well placed to provide such training.


As mentioned in chapter 2, as part of the consultation process we will be gathering information to enable us to fully assess the costs of the proposals within the consultation, including of course costs that would be involved in changing sheriff court practice to reflect the requirements of amended AWI legislation, or costs incurred in transferring AWI cases to the MHTS, and the changes that would be subsequently required to that tribunal.


Which of the following options do you think would be the appropriate approach for cases under the AWI legislation?

Office of the Public Guardian considering grade 1 applications, a Sheriff in chambers considering grade 2 applications on the basis of documents received, then a Sheriff conducting a hearing for grade 3 applications.


Office of the Public Guardian considering grade 1 applications, with a legal member of the Mental Health Tribunal for Scotland considering grade 2 applications on the basis of the documents received, then a 3 member Mental Health Tribunal hearing grade 3 applications.

Please give reasons for your answer.

Please also give your views on the level of scrutiny suggested for each grade of guardianship application.

If you have any further comments on the proposals for the forum, please add them here.