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The Adults with Incapacity Bill is now being discussed by Parliament after a short period of consultation. Based on a draft bill produced by the Scottish Law Commission in 1995, it makes provisions as to the property, financial affairs and personal welfare of adults who as a result of incapacity cannot fully make decisions or act for themselves, on the basis that "the present law is failing to meet the welfare (including medical treatment) needs of adults with incapacity". The Bill is, therefore, felt to be long overdue because of the predicament that many families and individuals have been left in when a person under their care has become incapable of administering their own affairs. For example, funds in joint bank accounts may no longer be accessible when one account holder loses capacity. Similarly, funds of an incapable adult cannot be accessed readily when expenditure incurred by the adult has to be met. Issues such as these are remedied by the new legislation and the lives of around 100,000 people in Scotland will be greatly improved as a result. In addition, the Bill addresses the problem for those involved in residential care that care establishments are unable legally to manage a resident's personal finances when they lose capacity, even though there may be no one else to do so. It also seeks to clarify issues of authority to treat patients who are incapable of giving their own consent or otherwise for medical treatments. Initial Concerns "Treatment" is defined by S44(2) as including medical and nursing procedures and "ventilation, nutrition or hydration by artificial means" (eg feeding a patient through a tube). This may lead to problems, and it has been argued that the definition of treatment is unnecessary, or that feeding and giving fluids should be excluded from the definition. The original draft bill included some controversial issues such as 'living wills' and non-therapeutic research on adults with incapacity. Preliminary consultation lead to these aspects being dropped from the bill. However, there are incorporated into the bill some provisions which raise concerns. Essentially it seems that the framing of the legislation may not provide adequate protection for the adult with incapacity against abuse of the power which will be given to proxy decision makers, i.e. those who will act on behalf of the adult with incapacity. The Scottish Council on Human Bioethics (SCHB) (on which several churches are represented) has argued that "The proposals for proxy decision-makers in the Scottish Executive's 'Adults with Incapacity (Scotland) Bill' fail to provide vulnerable incapable people with sufficient protection from abuses of power. In particular, they could allow proxies – who may have a financial interest - to refuse treatment (including tube feeding and hydration) on behalf of incapable adults with the intention of causing their deaths or harming them. The proposals would remove responsibility (and therefore liability) from doctors to act in the best interests of incapable patients without placing any duties of care on the replacement decision-makers. Thus, where a proxy is appointed, no-one bears ultimate responsibility for a decision which may be clinically negligent or perverse. The incapable adult would have no remedy in law for certain abuses of power."
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