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

Chapter Four

Principles Of The Adults With Incapacity Legislation (Part 1, s.1)

The starting point for any actions under the AWI legislation is that a person is assumed to have capacity to make and understand decisions unless it is shown to be otherwise. Assessments of capacity must be decision specific.

The principles of the AWI legislation are intended to make sure that a person’s independence of thought and action is maintained as far as is possible when interventions under the legislation are being considered.

Anyone taking action under the AWI Act, or thinking about taking action under the Act has a legal duty to implement the principles.

When the AWI legislation came into force, the principles of the Act reflected international human rights standards as contained within the European Convention on Human rights, and were widely welcomed. But with the advent of the UNCRPD, we believe that more needs to be done to maximise the autonomy of those persons who may have some form of impairment in their ability to make decisions for themselves. In particular, we believe the requirements of Article 12 of the UNCRPD should be reflected within the principles of the AWI legislation.

Our proposal is that we create a new principle stating:

There shall be no intervention in the affairs of an adult unless it can be demonstrated that all practical help and support to help the adult make a decision about the matter requiring intervention has been given without success.

Amendment to the code of practice will set out what is expected by way of practical help and support. We believe this principle will help ensure that interventions under the AWI legislation are only taken when absolutely necessary and that priority is given to supporting individuals to continue to make decisions for which they retain the capacity to make, and to influence proxies where they lack capacity to intervene in ways which are most aligned to the adult’s will and preferences as far as it is safe and practicable to do so.

In addition, it has been recommended by the Essex Autonomy Project that actions which contravene the person’s known will and preferences should only be permissible if it is shown to be a proportionate and necessary means of effectively protecting the full range of the person’s rights, freedoms and interests.

At present the AWI principles state:

• there shall be no intervention in the affairs of an adult unless the person responsible for authorising the intervention is satisfied that the intervention will benefit the adult and such benefit cannot reasonably be achieved without the intervention
• and such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention
• In determining if an intervention is to be made and, if so, what intervention is to be made account shall be taken of the past and present wishes and feelings of the adult so far as they can be ascertained, the views of the nearest relative and primary carer, and any guardian, continuing attorney or welfare attorney who has powers relating to the to proposed intervention.

However, it is arguable that these principles do not go far enough to reflect the requirements of Article 12 of the UNCRPD in ensuring the the rights, will, and preferences of adults who may be subject to intervention under the AWI legislation are respected.

We therefore would like views on whether a further principle may be required to ensure that an adult’s will and preferences are only contravened in actions under the Act if it is shown to be a necessary and proportionate means of protecting the full range of the person’s rights and freedoms.

Questions

Do you agree that we need to amend the principles of the AWI legislation to reflect Article 12 of the UNCRPD?

Does our proposed new principle achieve that?

Is a further principle required to ensure an adult’s will and preferences are not contravened unless it is necessary and proportionate to do so?

Are there any other changes you consider may be required to the principles of the AWI legislation?

Please give reasons for your answers.