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The Adults with Incapacity (Scotland) Act 2000: Graded Guardianship as a WayForward in Developing a More Proportionate Statutory Response to the Needs ofAdults with Impaired CapacityGeorge Kappler, Mental Welfare Commission for Scotland, UK(george.kappler@mwcscot.org.uk)Welfare Guardianship under the Adults with Incapacity (Scotland) Act (2000) has been a victimof its own success. Use of this power has risen by nearly 60% in the past five years. There arenow approximately 7,000 people on welfare guardianship in Scotland. Alongside this increasehas come a change in the nature of its use. Where traditionally applications were made largely bylocal authorities in exercising their protective role, the reverse is now the case, with 70% of newapplications being made by private parties. There has also been an increase in its use for youngerpeople with learning disabilities. Worryingly, most orders are now approved on an indefinitebasis. The question of when an order should be sought as opposed to when it must be soughtcontinues to be the subject of considerable debate. We now have a situation where, for instance,a 95 year old with severe dementia receiving palliative care in a care home is subject to the samestatutory provisions in terms of the application process and supervisory regime as a 25 year oldwith severe learning disability and challenging behaviour whose care involves considerablerestrictions which effectively constitute a deprivation of liberty. Beyond this, parents who havebeen providing intensive care and support for a severely disabled child since birth haveexpressed feeling demeaned and humiliated when having to appear in court to justify continuingtheir parental role by seeking guardianship powers when their child turns 16. This paper willexplore a possible way forward through the creation of different levels of guardianship withgraded levels of statutory involvement at the application and supervision stages which are moreproportionate to the individual circumstances of the adult.An Exploration of the Understanding and Use of the ‘Impaired Ability’ Criterionfor Compulsory Treatment in the Mental Health (Care and Treatment)(Scotland) Act 2003Jacqueline Atkinson, University of Glasgow (Jacqueline.Atkinson@glasgow.ac.uk)Jacquie Reilly, University of Glasgow (Jacquleine.Reilly@glasgow.ac.uk)The Mental Health (Care and Treatment) (Scotland) Act 2003, introduced in October 2005,brought in a fundamental change to the criterion for compulsory treatment. For the first time inUK mental health legislation a capacity criterion was introduced for short-term and compulsorytreatment orders. This criterion states: “that because of the mental disorder the patient’s abilityto make decisions about the provision of medical treatment is significantly impaired”.Significantly impaired decision making ability (SIDMA) is not the same as “incapacity” underthe Adults with Incapacity (Scotland) Act 2000 but is a “related concept” based on similar57