Adults with Incapacity Amendment Act: consultation
Support for decision making
We also think that there needs to be a greater emphasis on support given to an adult to enable them to make their own decisions, before any steps are taken to intervene in the adult’s life.
A priority of the Scottish Government Mental Health and Capacity Reform Programme is to help people voice their opinions through supported decision-making practices. The programme is committed to reviewing existing practices, working with partners to assess effective Supported Decision Making practices. From this baseline decisions will be made on the necessary next steps.
We consider that this shift in approach needs to be fully embedded in the Adults with Incapacity Act (AWI Act). We have been looking at other jurisdictions for examples of good practice.
The Mental Capacity Act (Northern Ireland) 2016 has been praised for its approach. It provides in its principles that:
‘the person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make decision about the matter have been given without success.’
We think that a similar condition should be applied to actions under the AWI Act to ensure that interventions only take place when options for supported decision making have been exhausted.
We suggest that the principles should be amended to provide that prior to any intervention in the affairs of an adult, all practicable help and support to enable the adult to make their own decisions about matters should have been given and shown to have been given without success.
These principles should have priority over all other principles of the AWI Act to ensure that supporting the adult to make decisions, and ascertaining the will and preference of the adult and following those is the priority in considering any intervention in an adult’s life. And that not respecting the will and preference is only possible in specified circumstances.
These changes should ensure that the wishes and feelings of the adult, now referred to as will and preferences, are always front and centre of actions under the AWI Act.