Adults with Incapacity Amendment Act: consultation

Overview of the Consultation

This consultation and the reforms it proposes to the AWI Act are early actions in response to the recommendations of the Scottish Mental Health Law Review (SMHLR).

The purpose of the consultation is to seek views on updating the AWI Act in advance of wider reforms that may take place over the next 5 to 10 years, as set out in the Scottish Government’s response to the SMHLR.

We are seeking views on suggestions 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.

In addition part 8 of the consultation, which can be considered in isolation, sets out proposals for reform to section 51 of the AWI Act and associated regulations, concerning authority for research.

The consultation focuses on changes to the law. But for changes to the law to be truly effective, a change in practice and in particular the need to embed supported decision making across the health and social care sector needs to be acknowledged.

A key part of mental health and capacity reform is improving support to further embed a human rights based approach within services and wider systems of support. The initial delivery plan for the Mental Health and Capacity Reform Programme was published on 4^th June. This outlines the early work being taken forward which will review and assess current approaches to supported decision making being taken forward across government, including work being taken forward around the National Care Service Bill to enhance independent advocacy as a means of empowering people to have their voices heard and realise their rights.

Alongside this, emerging policies such as Getting it Right for Everyone, and the work following the consultation on the proposed Human Rights Bill will strengthen person centred and rights based practice.

We will be assessing the progress of this work and over the coming months will be considering what else needs to be done to put in place a comprehensive supported decision making regime that will be required to underpin proposed changes in AWI law.

Mental Disorder

Another early priority for work following the response to the SMHLR is consideration of the term ‘mental disorder’. This is the term used in both the AWI Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act), to describe a person who could come within the remit of these Acts. It is considered by many to be outdated and offensive. Work has begun with partners alongside the consultation on a proposed Learning Disabilities, Autism and Neurodivergence Bill, to look at options for change. This topic is not part of this consultation but any recommendations for change emerging from the ongoing work will be considered in due course.

Contents

The consultation broadly follows the order of the AWI Act. Part 7 includes consideration of deprivation of liberty of an adult lacking in capacity. Whilst authority for research is in Part 5 of the AWI Act, we have included it as Part 8 of the consultation due to its size.

1. Part 1 - Principles of the legislation – changes to reflect the need to ensure that the wishes and feelings of the adult are front and centre at all times, changes in terminology (and other areas of Part 1 we are consulting on)

2. Part 2 - Powers of attorney – summary of changes previously consulted on that we are taking forward, other issues

3. Part 3 – access to funds – changes to make it more accessible

4. Part 4 - management of residents' finances - removal of sections

5. Part 5 – changes to s 47 certificates and associated matters

6. Part 6 – changes to guardianship, interim guardianship and intervention orders

7. Part 7 – deprivation of liberty proposals, stand-alone right of appeal, appointment of safeguarders

8. Part 8 – Authority for Research