Capability Scotland is one of the country's leading disability organisations working for a just Scotland. We work with children, adults and families living with disability to support them in their everyday lives. We also work with disabled people, family members and carers to influence legislation, policy, practice and attitudes.

  Many of the people who use our services have some level of learning disability, so the question of how their human rights are protected is of great interest to our organisation, and we welcome the Committee's call for evidence on this issue.

  We became aware of this consultation quite recently, and so have been unable to involve our service users in developing the comprehensive response that we would have liked to submit. It is Capability Scotland's view that the voices of the adults themselves must be heard, and we would welcome the opportunity to carry out such an internal consultation in the future.

  We anticipate that you will receive a great deal of information from other organisations highlighting areas where there is still much work to be done in ensuring the human rights of adults with learning disabilities, for example in employment, health and independent living.

  We hope that you will receive sufficient evidence from individuals and organisations based in Scotland to explain the very different landscape in which we operate. If this is not the case we would urge you to re-issue the call for evidence, and ensure that notification reaches the relevant organisations.

  One Scottish development that is particularly relevant to this call for evidence is the passing of the Adult Support and Protection (Scotland) Act 2007. It was the result of a great deal of discussion on how best to protect adults at risk of serious harm, particularly around the Scottish Law Commission's position paper and draft vulnerable adults bill, published in 1997. The much publicised case in the Scottish Borders provided further impetus.

  The Act places duties on Local Authorities to carry our investigations into a person's well-being, property or financial affairs if it knows of believes that the person is an "adult at risk", and that it might need to intervene in order to protect them from that risk.

  Section 3 of the Act defines an "adult at risk" as any adult who—

(a)  is unable to safeguard their own well-being, property, rights or other interests;

(b)  is at risk of harm; and

(c)  because they are affected by disability, mental disorder, illness or physical or mental infirmity, is more vulnerable to being harmed than adults who are not so affected.

  While Capability Scotland welcomed the intention of protecting people from abuse, such a wide definition encompasses any adult affected by disability, and we have serious concerns about the implications of this legislation on their human rights. Our concerns were shared by many other disability organisations, as seen at the evidence session held by the Health Committee at the Scottish Parliament on 19th September 2006.

  We felt that there were a number of potential incompatibilities with the Human Rights legislation, and sought a legal opinion from Fisher Meredith solicitors on the compatibility of Part 1 of the proposed Bill with the Human Rights Act 1998. They identified concerns around the following areas:

—  Article 5: Right to Liberty—the Act contains the power to remove adults from situations where they are at risk of abuse, but no power to detain them. There is potential for such adults to be removed against their wishes, and it is not clear if such adults would be detained.

—  Article 6: Right to a fair trail in civil proceedings—particularly the power set out in Section 38 for the sheriff to dispense with the safeguards that are in place to ensure fair proceedings, provided they are satisfied that doing so will protect the adult at risk from serious abuse. The sheriff can effectively deny the adult at risk any involvement in the protective order application process.

—  Article 8: Right to private and family life—The Act places greater emphasis on the removal of the adult at risk from the potentially abusive situation, rather than the banning of the alleged "abuser". It is for the Sheriff to interprets the provision in line with human rights legislation, and grant whichever protective order that provides the best safeguard and which, as per the general principle of the Act, causes the least interference. If the Sheriff interprets the provision to give preference to the removal order, might be incompatible with ECHR.

—  Article 14: Discrimination—Generally, adults must consent to being medically examined and treated, unless they lack capacity to do so. Under this Act, a Sheriff can order such action, even when the adult has previously withheld consent without having to demonstrate that they lack capacity, which is clearly differential treatment.

  In general terms the Act represents a significant step backwards in terms of disability equality. It is based on inaccurate assumptions about the capabilities of disabled people, and an entirely inappropriate view that disabled people are not able to make their own decisions. In a direct example of discrimination, this Act allows for disabled people to be treated differently to non-disabled people. A woman experiencing domestic abuse can make the decision to remain in the situation. If that woman is disabled, the right to make that decision is taken away from her.

  This underlying assumption that "we know best" is at the heart of challenges we face in ensuring that the human rights of all disabled people are respected. We need greater focus on supporting people to make such decisions, and to live their lives independently.

  We would urge you to keep Capability Scotland informed on all further work on this and other investigations involving disabled people and their families. Our networks could provide an invaluable insight into the real experiences of people affected by disability in Scotland.

24 May 2007