Adults with incapacity ( Scotland ) Act 2000: proposals for reform

Chapter Two: Summary Of Proposals

What Changes To The Act Are Being Considered?

The AWI Act has long been a highly regarded piece of legislation and its approach of ensuring that solutions focus on the needs of the individual reflects the person centred approach that underpins much of Scottish legislation today.

We are proposing a number of changes that will maintain the overall shape of the legislation, but we hope that they will ensure the legislation is fit for the next twenty years and beyond. The proposals are intended to modernise the legislation, improve the extent to which it empowers disabled adults and simplify the complex process of guardianship to provide something more flexible and limited for the significant number of cases where a full court process adds little value.

Summary of proposals

This consultation paper contains detailed proposals for changes in the following areas:

• Enhanced principles within the legislation to reflect the need for an adult to have support for the exercise of legal capacity.
• The use of powers of attorney.
• Creation of graded guardianship.
• Judicial forum for cases under AWI legislation.
• Creation of a short term placement order.
• Creation of a right of appeal against a residential placement, or restrictions within a placement.
• Changes to authorisation for medical treatment.
• Changes to authority for research.

In addition the paper asks for views on the following:

• Supervision and support for guardians.
• Advance directives.

There will also be the opportunity to comment on any other matters within the AWI legislation that consultees may consider would benefit from review.

Other areas for change

But the proposals in this consultation paper contain only part of the story of change around this legislation. The Scottish Government is committed to fully ratifying the UN Convention on the Rights of Persons with Disabilities, and this will mean ensuring that support is given for persons who need it to exercise their legal capacity.

So, in parallel with this consultation paper, a scoping exercise is being carried out to find out what is currently happening across Scotland by way of support for decision making for those who need it.

Using the information from this exercise, working groups with a range of stakeholders will be set up with the aim of establishing a strategy for support for decision making that will underpin the AWI legislation.

What we are seeking to achieve is an over-arching support mechanism which will maximise the autonomy and exercise of legal capacity for persons with impaired capacity so that genuine non-discriminatory respect is afforded for an individual’s rights, will and preferences.

In addition, the Scottish Government is committed to carrying out work to improve practice and develop consistent standards across law and medicine on the assessment of capacity.

Further announcements on this work around support for decision making and capacity assessments will be made in the summer of 2018.

Impact assessment

It is important to ensure that any legislation which may result from this consultation, which has the potential to impact on us all, is robust and durable, with no unintended consequences and that it takes account of all relevant perspectives, including equalities considerations and any potential financial and regulatory implications.

As part of the consultation process, we will be gathering information to enable us to assess the impact and costs of implementing any of the proposals, or indeed of not doing so, from the perspective of a range of interests.