Adults with Incapacity Amendment Act: consultation

The Adults with Incapacity (Scotland) Act 2000 (AWI Act) is governed by principles set out in section 1 of the Act. Anyone taking action under the AWI Act has a legal duty to follow the principles.

The principles can be summarised as follows

• no one should intervene under the AWI Act unless they are satisfied that the action will benefit the adult. They should also be satisfied that this benefit cannot reasonably be achieved without the intervention
• any action taken should be the minimum necessary to achieve that purpose
• anyone determining whether to intervene, and what intervention to make, should take account of the past and present wishes and feelings of the adult
• the views of certain significant others in the adult’s life need to be take into account
• any guardian, attorney or manager of an establishment should encourage the adult to exercise whatever skills they have and to develop new skills, as far as this is reasonable and practicable

These principles all have parity. No single principle is more important than another and together they should ensure that all actions taken under the AWI Act stem from the needs of the adult. Everyone acting under the AWI Act must be able to justify their actions in accordance with the principles of the Act.

However the requirements of article 12 of the United Nations Convention on the Rights of Persons with Disability mean that respect for the full range of the rights, will and preferences of everyone should lie at the heart of legal regimes. To move towards this, we think  the principles of the AWI Act should be amended to give greater priority to the will and preferences of the adult. We think that to ensure priority is given to an adult’s will and preferences, before any steps are taken to intervene in an adult’s life, all practicable steps should be taken to ascertain their will and preferences, and, thereafter, any intervention under the AWI Act must be in accordance with the adult’s rights, will and preferences.

The exception to this would be if it can be shown that not to follow an adult’s will and preferences would be a proportional and necessary means of effectively protecting the full range of the person’s rights, freedoms and interests, then steps can be taken.

There will also be circumstances where it is simply not possible to give effect to a person’s will and preferences, such as for example an adult  wishing to live with their sibling but the sibling’s accommodation is not viable or safe for the adult to live there. In such cases, the expectation would be for time to be spent with the adult to devise an acceptable alternative.