Adults with Incapacity Amendment Act: consultation analysis summary

1. Introduction

The Scottish Government carried out a consultation on the Adults with Incapacity (Scotland) Act 2000 (the AWI Act) between July and October 2024. The purpose of the consultation was to seek views on proposals to reform the legislation following recommendations made by the Independent Review of Mental Health and Incapacity Law in Scotland. The Scottish Mental Health Review (SMHLR) recommended a new approach to mental health and capacity law with a new purpose of ensuring that the human rights of people with mental or intellectual disability are respected, protected and fulfilled.

Given such a radical change, were it to be fully committed to by the Scottish Government, it would take several years to achieve. The SMHLR strongly recommended that the AWI Act be reformed sooner, to address concerns around whether the AWI Act had kept pace with developments in human rights law and the prospect of incorporation of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) into Scots law.

The Scottish Government agreed with this recommendation of the SMHLR and prepared a consultation seeking views on changes to the existing AWI Act that builds on earlier work but recognises the fact that this is the first step in a wider programme of work to reform mental health and capacity law over the next ten years.

The consultation sought views on proposals for change to the AWI Act that aim to:

• Improve access to justice for adults affected by the AWI Act
• Shift the focus of the AWI Act to one that truly centres on the adult
• Enable adults to access rights more easily
• Ensure adults are supported to make and act upon their own decisions for as long as possible
• When an adult cannot make their own decisions despite support, ensure that their will and preferences are followed unless doing so would be to the overall detriment of the adult
• Reform provisions around research and AWI

This report provides an overview of analysis of the responses received.