Abstract Book - International Academy of Law and Mental Health

17. Capacity, Incapacity, and Impaired Decision-Making: Supportand Protection in the Scottish ContextCapacity and the Provision of Support and Protection for Adults atRisk of HarmAilsa Stewart, University of Strathclyde (ailsa.e.stewart@strath.ac.uk)The Adult Support and Protection (Scotland) Act (2007) (ASPA) provides for voluntary andstatutory measures to support and protect adults at risk of harm, including those who havecapacity to make decisions. Intervention under the ASPA can only be sought with the consent ofthe adult. However, if evidence can be provided that the consent of the adult is being withhelddue to undue pressure being exerted by an external source, the Act allows for the consent to beoverridden in certain circumstances. Since the implementation of the ASPA in October 2008, ithas become clear that the statutory measures to support and protect adults at risk of harm,including removal and banning orders, have been used sparingly and often only as a last resort.The measures available within the legislation to override the consent of an adult to providesupport and protection have also been little used. This presentation will focus on discussing thefactors considered in practice to override the consent of an adult within this unique legal context.In particular, the legislative framework and associated codes of practice will be consideredalongside the place of professional judgement in considering risk of harm and the requirementfor statutory intervention, the issue of undue pressure will also be considered. The presentationwill draw upon empirical research to distill the key challenges in practice of providing supportand protection to adults utilising the measures within the ASPA, drawing distinctions betweenthe various groups of professional staff involved in these endeavours.The Use of Section 13ZA of the Social Work (Scotland) Act: LeastRestrictive Option or Unlawful DetentionGillian MacIntyre, University of Strathclyde (gillian.macintyre@strath.ac.uk)Section 13za of the Social Work (Scotland) Act (1968) commenced in March 2007 in order tomake explicit instances where a local authority, following an assessment of an individual’s needscan take steps to ensure the individual benefits from services, where they do not have thecapacity to make this decision for themselves. Section 13za enables local authorities to take“any steps” they believe are necessary to ensure the individual benefits from such services. Theinterface between the various relevant pieces of legislation and guidance including Section 6 ofthe Adults with Incapacity (Scotland) Act (2000) and the European Convention on HumanRights (ECHR) are complex and local authorities must ensure that any steps that are taken do notcontravene an individual’s human rights. This relates particularly to Article 5 of the ECHR, interms of deprivation of liberty. This presentation will explore the continuing differences amongst44