Adults with Incapacity Amendment Act: consultation

Ministerial Foreword

The Adults with Incapacity (Scotland) Act 2000 (AWI Act) when introduced was seen as a major step forward in incapacity legislation. Its rights based focus, centred around principles, earned Scotland an international reputation for being a leading example of a country that had created good legislative practice.

Since then there have been significant changes both in legislation and case law. The United Nations Convention on the Rights of Persons with Disability (UNCRPD) was ratified by the UK in 2009. The Convention sets out what should be done to break down the barriers that prevent disabled people from realising all of their human rights. European and Supreme Court rulings in the Bournewood and Cheshire West cases expanded the conditions where someone could be considered to be deprived of their liberty and therefore eligible for the protections offered under Article 5 of the European Convention on Human Rights.

To consider the impact of these changes on the AWI Act along with the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adult Support and Protection (Scotland) Act 2007, the Scottish Government commissioned an independent review, chaired by Lord Scott. The Scottish Mental Health Law Review (SMHLR) published its final report in September 2022. Since then we have formed a programme of change, publishing our delivery plan in June this year. Consultation on change to the AWI Act is an early action in this plan.

This consultation is the outcome of informal discussions with a wide range of stakeholders and service users who have given up valuable time over the last few years to meet with Scottish Government officials to discuss what works well about the law as it stands, and what needs to change. It also considers the recommendations the SMHLR made for early changes to the AWI Act.

I am very grateful to the time and effort so many have given to reaching this stage. This consultation gives the opportunity for a wider audience to let us know what works and what doesn’t around the AWI Act, and what reforms might be needed to reflect the changes that have occurred in the past 20 years since the AWI Act came into force. Your time in considering this consultation is much appreciated and I look forward to seeing the results.

Maree Todd MSP

Minister for Social Care, Mental Wellbeing and Sport.