Publication - Consultation paper

Adults with Incapacity Amendment Act: consultation

Published: 25 July 2024
From: Minister for Social Care, Mental Wellbeing and Sport, +15 more … Cabinet Secretary for Health and Social Care, Chief Executive of NHS Scotland and Director-General Health and Social Care, Chief Medical Officer, Chief Nursing Officer, Chief Scientific Officer, Director of Health Workforce, Director of Healthcare Quality and Improvement, Director of Justice, Director of Legal Services and Solicitor to the Scottish Government, Director of Mental Health, Director of Social Care and National Care Service Development, Director-General Education and Justice, Director-General Health and Social Care, Minister for Public Health and Women's Health, Permanent Secretary
Directorate: Mental Health Directorate, +14 more … Chief Medical Officer Directorate, Chief Nursing Officer Directorate, Chief Operating Officer, NHS Scotland Directorate, Digital Health and Care Directorate, Equality, Inclusion and Human Rights Directorate, Health and Social Care Finance, Digital and Governance Directorate, Health Workforce Directorate, Healthcare Quality and Improvement Directorate, Justice Directorate, Legal Services (Solicitor to the Scottish Government), Parliamentary Counsel Office, Population Health Directorate, Primary Care Directorate, Social Care and National Care Service Development
Topic: Health and social care
ISBN: 9781836014621

This consultation seeks views on proposed changes to the Adults with Incapacity (Scotland) Act 2000. The changes put the adult front and centre of the legislation, reflecting UNCRPD, deprivation of liberty case law and the recommendations of the Scottish Mental Health Law Review

Supporting documents

Footnotes

1 Adults with Incapacity (Scotland) Act 2000 asp 4

2 Report on Adults with Incapacity - SLC 204 (scotlawcom.gov.uk)

3 Scottish Law Commissions Report on Adults with Incapacity - Scottish Government consultations - Citizen Space

4 Adults with Incapacity Reform - Scottish Government consultations - Citizen Space

5 [ARCHIVED CONTENT] Homepage | Scottish Mental Health Law Review (nrscotland.gov.uk)

6 The UNCRPD was ratified by the UK in 2009. It sets out the human rights of disabled people and the obligation on states to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities, without discrimination of any kind on the basis of disability.

7 The EAP Three Jurisdictions Report

8 Three Jurisdictions report p 1

9 Section 1 (4) of the Mental Capacity Act (Northern Ireland) 2016.)

10 Adults with incapacity: code of practice for local authorities

11 S.10 (1)(c ) and s.10 (1)(d) AWI

12 S.10 (1) (b) AWI

13 S.4 ASP

14 S.3 ASP

15 S.5 ASP

16 Adults with incapacity: code of practice for local authorities

17 S.9(1)(d) AWI

18 SMHLR

19 S15 AWI Act

20 S16 AWI Act.

21 S10 of AWI Act.

22 S3 of AWI Act

23 S20 of AWI Act

24 Adults with Incapacity Reform - Scottish Government consultations - Citizen Space

25 Chapter 13 SMHLR

26 13.2.2 Scott Review

27 The Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2008

28 The Law Society Accredited Paralegals

29 S.27E

30 Schedule2, sections 7 and 8

31 s.26(1)(a)

32 S.24A(2)

33 s.26A(1)(b)

34 in s.26A(1)

35 under section 26F

36 s.24B(2)

37 s.1(3)

38 S.31E

39 S.25(5)

40 S.26(1)(b)

41 S.31E

42 Statutory Instrument 1999 No. 929 (S. 65), rule 3.16.4(2)

43 Scottish Law Commission Report on Adults with Incapacity October 2014

44 Adults with Incapacity Reform - Scottish Government consultations - Citizen Space

45 Adults with Incapacity: code of practice for Medical Practitioners

46 The Mental Health Act (Care and treatment) (Scotland) Act 2003

Graded Guardianship

48 Download the consultation paper.

49 Summary and analysis of consultation responses

50 SMHLR

51 Page 723 SMHLR

52 See Schedule 2 of SSI 2002/96.

53 Form AWI 8 (schedule 8): report to accompany application for guardianship relating to property and financial affairs

54 Guardian Declaration

55 S.57(4)

56 S.57(3B)

57 Adults with Incapacity (Scotland) Act 2000 Proposals for Reform

58 AWI Act s58(4)

59 SSI 2002/95 Adults with Incapacity (supervision of welfare guardians etc by local authorities)(Scotland) Regulations

60 Adults with Incapacity Act monitoring report 2022-23

61 Aberdeenshire Council v SF (No 2) [2024] EWCOP 10

62 S16(6) and s.64(2)

63 HLvUK (45508/99)[2004]ECHR471

64 Cheshire West and Chester Councilv P[2014] UKSC 19

65 Report on Adults with Incapacity 2014 SLC 240

66 Winterwerp v Netherlands ( 6301/73[1979]ECHR 4

67 The Adults with Incapacity (Supervision of Welfare Guardians etc. by Local Authorities) (Scotland) Regulations 2002 (as amended)

68 KvArgyll and Bute Council [2021]SAC (civ) 21

69 Stanev. V Bulgaria (App 36760/06)(2012) 55 EHRR 22

70 AWI Act S.83

71 Adults with Incapacity Reform

72 NHS Health Research Authority. How we regulate health and social care research. 2018.

73 NHS Health Research Authority. UK Policy Framework for Health and Social Care Research.

74 Be Part of Research.

75 NHS Research Scotland. Take Part in Current Research (NHS Research Scotland).

76 NHS Research Scotland. Research Governance (NHS Research Scotland).

77 NHS Health Research Authority. UK Policy Framework for Health and Social Care Research.

78 Note: on 31 January 2022, the EU Directive mentioned in the text (the Clinical Trials Directive (2001/20/EC)) was replaced by the Cinical Trials Regulation (EU No 536/2014) in the EU.

79 The Medicines for Human Use (Clinical Trials) Regulations 2004, No. 1031.

80 Scottish Parliament. About the Scottish Parliament: Devolved and Reserved Powers (Scottish Parliament)

81 The Medicines for Human Use (Clinical Trials) Regulations 2004, No. 1031, sch 1.

82 The Adults with Incapacity (Scotland) Act 2000, s. 51(3A).

83 The Adults with Incapacity (Ethics Committee) (Scotland) Regulations 2002.

84 The Adults with Incapacity (Scotland) Act 2000, s. 51(3)(f).

85 The Adults with Incapacity (Scotland) Act 2000, s. 51(1) and s. 51(2).

86 The Mental Capacity Act 2005, s. 32(2) and s. 32(3).

87 The Mental Capacity Act (Northern Ireland) 2016, s. 135(2) and s. 135(3)

88 The Health Research Authority (HRA) has developed a useful tool that can be used to determine whether a research study conducted in the UK requires review by a Research Ethics Committee

89 Research Ethics Service Annual Report for Scotland: April 2019 – March 2020. Scottish Research Ethics Service.

90 NHS Research Scotland. Research Ethics Structure in Scotland (NHS Research Scotland).

91 NHS Scotland Public Benefit and Privacy Panel for Health and Social Care (HSC-PBPP). Public Benefit and Privacy Panel for Health and Social Care.

92 About the Public Benefit and Privacy Panel for Health and Social Care. Public Benefit and Privacy Panel for Health and Social Care

93 The Caldicott Principles. The UK Caldicott Guardian Council.

94 Regulation (EU) 2016/679 of the European Parliament and of the Council (UK GDPR), Article 5.

95 NHSScotland Caldicott Guardians: Principles into Practice. Scottish Government, 2010.

96 Report on the Review of Patient-Identifiable Information. Department of Health (The Caldicott Committee), 1997.

97 The Adults with Incapacity (Scotland) Act 2000, s. 51(3)(f).

98 Confidentiality Advisory Group. NHS Health Research Authority.

99 Mental Capacity Act 2005: Code of Practice. Department of Constitutional Affairs, 2007.

100 NHS Health Research Authority. The Mental Capacity Act 2021.

101 The Mental Capacity Act 2005, s. 30.

102 Confidentiality Advisory Group. NHS Health Research Authority.

103 Curry N, et al. Early fibrinogen concentrate therapy for major haemorrhage in trauma (E-FIT 1): results from a UK multi-centre, randomised, double blind, placebo-controlled pilot trail. Crit Care., 2018; 22:164.

104 Marsden M, et al. Coagulopathy, cryoprecipitate and CRYOSTAT-2: realising the potential of a nationwide trauma system for a national clinical trial. Br. J. Anaesth, 2019; 122(2), 164-169.

105 The Mental Capacity Act 2005, s. 32(8), 32(9) and 32(10)

106 The Mental Capacity Act (Northern Ireland) 2016, s. 136

107 National Institute for Health and Care Research. Spinal Immobilisation Study (National Institute for Health and Care Research)

108 NHS Blood and Transplant. SWIFT: Study of Whole blood In Frontline Trauma.

109 National Institute for Health and Care Research. Conservative Management in Traumatic Pneumothoraces in the Emergency Department

110 National Institute for Health and Care Research. Randomised trial of the clinical and cost effectiveness of a supraglottic airway device versus tracheal intubation during in-hospital cardiac arrest

111 Adults with Incapacity (Scotland) Act 2000, s. 51(3f).

112 Adults with Incapacity (Scotland) Act 2000, s. 51(2)

113 Scotland’s Population: The Registrar General’s Annual Review of Demographic Trends 2019. National Records of Scotland, 2020.

114 Estimated and Projected Diagnosis Rates for Dementia in Scotland: 2014-2020. Scottish Government, 2016.

115 Scottish Diabetes Survey 2020. NHS Scotland, Scottish Diabetes Data Group, 2020

116 Cancer Incidence and Prevalence in Scotland (to December 2019). Public Health Scotland, 2021. Figures include all forms of cancer except non-melanoma skin cancer