Adults with Incapacity Amendment Act: consultation

Introduction

This consultation is asking for your thoughts on proposals for reform to the Adults with Incapacity (Scotland) Act 2000 (the AWI Act).^[1]

When the AWI Act was enacted in 2000, it was regarded as ground-breaking legislation. For the first time, Scotland had a comprehensive regime to protect the welfare and financial rights of persons lacking in capacity.

But international human rights law in this field has developed further since then and we need to ensure that Scotland's law remains fully fit for purpose.

In the past ten years the AWI Act has been the subject of much scrutiny. In 2014, the Scottish Law Commission in its report^[2] made substantive recommendations for change around the issue of depriving persons with incapacity of their liberty. These recommendations were consulted on in 2016^[3] and a further, more wide ranging consultation on AWI was carried out in 2018^[4] by the Scottish Government.

Most recently, the position on adult capacity law was included in the remit for the Independent Review of Mental Health and Incapacity law (SMHLR)^[5] which was announced by Scottish Ministers in 2019 and reported in 2022.

The strong recommendation of the SMHLR was a new overall approach to mental health and capacity law was required. The law should have a new purpose, namely to ensure that the human rights of people with mental or intellectual disability are respected, protected and fulfilled.

It was recognised in the final report of the SMHLR however that such a radical change would take several years to achieve and there was a pressing need for earlier reform to the AWI Act 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 of the Rights of Persons with Disabilities (UNCRPD)^[6] into Scots law.

The Scottish Government agreed with the recommendation of the SMHLR.

This consultation seeks views on changes to the existing AWI Act. It 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 in Scotland over the next ten years.