Response 513845279

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Part one: principles of Adults with Incapacity Act

1. Do you agree that the principles of the AWI Act should be updated to require all practicable steps to be taken to ascertain the will and preferences of the adult before any action is taken under the AWI Act?

Please select one item
Yes
No
Please give a reason for your answer
The steps taken should have to be shown within any application under AWI
The adult's will and preferences should only be overridden in exceptional circumstances - protecting the full range of the person’s rights, freedoms and interests would need to be clearly defined in guidance

2. Do you agree that in the AWI Act we should talk about finding out what that adult’s will and preferences are instead of their wishes and feelings?

Please select one item
Yes
No
Please give a reason for your answer
There needs to be clear guidance on how the adult's will and preferences have been sought / ascertained

3. Do you agree that any intervention under the AWI Act should be in accordance with the adult’s rights, will and preferences unless not to do so would be impossible in reality?

Please select one item
Yes
No
Please a reason for your answer
I am concerned about the word 'impossible' as there are things that may be possible (if there were unlimited finances / resources) - any decision needs to focus on rights, will and preferences but based on what is realistic

Support for decision making

4. Do you agree that the principles should be amended to provide that all support to enable a person to make their own decisions should be given, and shown to have been unsuccessful, before interventions can be made under the Adults with Incapacity Act?

Please select one item
Yes
No
Please a reason for your answer
also there should be a requirement for 'advocacy' on an 'opt out' rather than 'opt in' basis

5. Do you agree that these principles should have precedence over the rest of the principles in the AWI Act?

Please select one item
Yes
No
Please give the reason(s) for any of your answers to questions 4 and 5 above
I would agree that all efforts should have been made however it may be that either rights will and preferences may not be clearly obtained or may be contradictory -for example the adult may want to remain living in their own home but want to be close to family / not want to be on their own for significant periods

How can we ensure the principles are followed?

6. Do you have any suggestions for additional steps that could be put in place to ensure the principles of the AWI Act are followed in relation to any intervention under the Act?

Please select one item
Yes
No
Please give the reason(s) for your answer
to show whether advocacy have been involved and if not the reasons for this

Proposed terminology changes

7. Do you agree with the change of name for attorneys with financial authority only?

Please select one item
Yes
No

Sheriff's power of directions

8. Do you agree with our proposals to extend the power of direction of the sheriff?

Please select one item
Yes
No
Please give the reason(s) for your answer
I think an sheriff should be able to any direction which is in covered by the principles - any action or decisions taken must benefit the adult and only be taken when that benefit cannot reasonably be achieved without it.

Authority of the Public Guardian

9. Do you agree with our proposal to amend the powers of investigation of the OPG to enable, where appropriate, an investigation to be continued after the death of the adult?

Please select one item
Yes
No
Please give the reason(s) for your answer
I also consider the OPG should have the power to investigate about any historical financial abuse if the adult has been subject to a measure under AWI at that time

Investigations into cases under the Adults with Incapacity Act

10. Do you agree that the investigatory responsibility between OPG and local authority should be split in the manner outlined above?

Please select one item
Yes
No
Please a reason for your answer
I think the OPG should retain responsibility for any investigations into property / finances where the adult lacks capacity
the OPG has the expertise / experience of this and social work / LA do not have the necessary expertise

11. Will these changes provide greater clarity on the investigatory functions of OPG and local authority?

Please select one item
Yes
No
Please a reason for your answer
I think clarity would be better provided if all financial / property investigations are carried out by OPG and welfare investigations are the responsibility of the LA / MWC

12. Will this new structure improve the reporting of concerns?

Please select one item
Yes
No
Please a reason for your answer
I am not clear that it will given I am not clear that issues relating to reporting of concerns relate to lack of clarity - if a concern / report is made to any service by any individual then the service should know who to direct this to

Part two: training for attorneys

13. Do you agree with the proposals for training for attorneys ?

Please select one item
Yes
No

Enhancing the safeguards around power of attorney

14. Do you agree that the Office of the Public Guardian should be given power to call for capacity evidence and defer registration of a power of attorney where there is dispute about the possible competency of a power of attorney document?

Please select one item
Yes
No

15. Do you agree that the Office of the Public Guardian should be able to request further information on capacity evidence to satisfy themselves that the revocation process has been properly met?

Please select one item
Yes
No

16. Do you agree that the Office of the Public Guardian should be given the power to determine whether they need to supervise an attorney, give directions or suspend an attorney on cause shown after an investigation rather than needing a court order?

Please select one item
Yes
No
Please give a reason for your answer
yes - in relation to supervision and giving of directions however I think that there should be a court order in relation to suspending an attorney

Increasing accessibility of powers of attorney

17. Should we extend the class of persons that can certify a granter’s capacity in a power of attorney?

Please select one item
Yes
No
Please give a reason for your answer
I am not clear that these proposals will increase the uptake of power of attorney documents.

18. Do you agree that paralegal should be able to certify a granter’s capacity in a power of attorney?

Please select one item
Yes
No

19. Do you agree that a clinical psychologist should be able to certify a granter’s capacity in a power of attorney?

Please select one item
Yes
No

20. Which other professionals can certify a granter’s capacity in a power of attorney?

Please give a reason for your answer
I do not see any reason to expand

21. Do you agree that attorneys, interveners and withdrawers (under Part 3) should have to comply with an order or demand made by the Office of the Public Guardian in relation to property and financial affairs in the same way as guardians ?

Please select one item
Yes
No
Please give the reason for your answer
Once the adult has lost capacity the requirements / safeguards should be the same

Broadening powers of Public Guardian to order compliance with demands in relation to property and financial affairs of the adult

22. Do you agree that the Public Guardian should have broader powers to suspend powers granted to a proxy under the Adults with Incapacity Act whilst they undertake an investigation into property and financial affairs?

Please select one item
Yes
No
Please give a reason for your answer
I believe this provides greater safeguards however any suspension should be time limited after which there should be a requirement to refer to the court

23. Do you agree that the Mental Welfare Commission and local authority should have broader powers to suspend powers granted to a proxy under the Adults with Incapacity Act whilst they undertake an investigation into welfare affairs?

Please select one item
Yes
No
Please give the reason for your answer
I believe this provides greater safeguards however any suspension should be time limited after which there should be a requirement to refer to the court

Varying pre-existing arrangements on the adult’s account

24. Do you agree that the powers and specific amounts should be decoupled?

Please select one item
Yes
No

25. Do you agree that the withdrawal certificate should contain standard, proforma powers for the withdrawer to use?

Please select one item
Yes
No

26. Do you agree that access should be given to the adult’s current account, rather than setting up a ‘designated account’?

Please select one item
Yes
No
Please give the reason(s) for any of your answers to questions 24 - 26 above
I think that decoupling powers and amounts would allow greater individualisation for the adult - if there are to be standard proforma powers then the withdrawal certificate should be such that certain powers may be deleted (if not appropriate / required) and there should be the option of adding powers which relate specifically to the adult's circumstances

Applications where there is a guardian, continuing attorney or intervener with powers relating to the funds in question

27. Do you agree that in certain circumstances, applications where there is a guardian, or intervener with powers relating to the funds in question should be allowed?

Please select one item
Yes
No
Please give the reason(s) for your answer
I would support a seamless transition - I also believe that there should be a 'truncated' process for the transition

Application when there is already authorisation to intromit with the same funds

28. Do you agree that we should clarify that a bar to applying under this section only applies if someone is already authorised under Part 3 of the Act to intromit with the same funds?

Please select one item
Yes
No

Account held by fundholder in adult’s sole name

29. Does having an account in the adult’s sole name limit organisational use of the scheme?

Please select one item
Yes
No
Please give the reason(s) for your answer
However I would not agree to any change which increases the risk of 'unclear accounting' or increases the risk of each adult's funds being able to be clearly accounted for

Transition to Access To Funds from intervention order

30. Should we add the same transition provisions to intervention orders as there are for guardianships?

Please select one item
Yes
No

Sheriffs to be able to approve Access To Funds if previously a guardianship order has been applied for and ATF is deemed a lesser intervention

31. Do you agree that sheriffs, under certain circumstances, should be able to grant powers to access funds under our new proposal?

Please select one item
Yes
No
Please give the reason(s) for your answer
This decreases bureaucracy and ensures that funds are available for the adult

Inclusion of authorised establishments in the Access To Funds scheme

32. Do you agree that authorised establishments should be able to apply under the ATF scheme?

Please select one item
Yes
No

Intimation of application

33. Do you agree we should split intimation of the application between organisations and lay people (OPG)?

Please select one item
Yes
No
Please give the reason(s) for your answer
If the aim is to broaden the organisations that can apply for Access to Funds and understand that part of the difficulties in the use of Part 4 (Residents' Finances) is the amount of bureaucracy / form filling etc then I do not support this

Part four: management of residents' finances

34. Do you support the proposal to remove Part 4 from the AWI Act?

Please select one item
Yes
No
Please give a reason for your answer
Not being used as intended

35. Do you think alternative mechanisms like the Access to Funds scheme, guardianships and intervention orders adequately address the financial needs of adults with incapacity living in residential care settings and hospitals?

Please select one item
Yes
No
Please give the reason your answer
these mechanisms should protect the adult's financial needs however consideration must be given to address the reasons why Residents' Funds applications have been so low and these addressed

Part five: adapted section 47 certificate authorising removal of adult to hospital for the treatment of a physical illness or diagnostic tests where they are unable to consent to admission

36. Do you agree that the existing section 47 certificate should be adapted to allow for the removal of an adult to hospital for the treatment of a physical illness or diagnostic test where they appear to be unable to consent to admission?

Please select one item
Yes
No
Please give a reason for your answer
There is little point in completing a Sec 47 certificate if the adult then refuses to attend for treatment

37. Do you consider anyone other than GPs, community nurses and paramedics being able to authorise a person to be conveyed to hospital? If so, who?

Please select one item
Yes
No
Please give further details to your answer
Any suitably qualified medical practitioner

38. Do you agree that if the adult contests their stay after arriving in hospital that they should be assisted to appeal this?

Please select one item
Yes
No
Please give a reason for your answer
Greater support should be given to the adult to appeal all interventions under AWI including the provision of advocacy

39. Who could be responsible for assisting the adult in appealing this in hospital?

Please give the reason for your answer
Mental Health (Care and Treatment) (Scotland) Act enables legal representation - advocacy or any person can make referral to a solicitor - if the person is unable to instruct a solicitor but is clearly in disagreement with the action there should be some mechanism that allows the court to appoint either a curator or a safeguarder

An enhanced section 47 certificate to prevent a person being treated for a physical condition from leaving hospital, whether temporarily or permanently

40. Do you agree that the lead medical practitioner responsible for authorising the section 47 certificate can also then authorise measures to prevent the adult from leaving the hospital?

Please select one item
Yes
No
Please give a reason for your answer
I think there should be an independent opinion on this

41. Do you think the certificate should provide for an end date which allows an adult to leave the hospital after treatment for a physical illness has ended?

Please select one item
Yes
No
Please give a reason for your answer
I think if there is to be 'on going restrictions' then this should be authorised by the Court in the same way that there cannot be on-going detention under Mental Health (Care and Treatment) (Scotland) Act without the overview of the tribunal

42. Do you think that there should be a second medical practitioner (i.e. one that has not certified the section 47 certificate treatment) authorising the measures to prevent an adult from leaving the hospital?

Please select one item
Yes
No
Please give a reason for your answer
I think this provides greater safeguards

43. If yes, should they only be involved if relevant others such as family, guardian or attorney dispute the placement in hospital?

Please select one item
Yes
No
Please give a reason for your answer
if the POA or Guardship contains the relevant powers then there should not need to be further authorisation but I do not think 'family' without any legal powers should be able to authorise this

44. Do you agree that there should be a review process after 28 days to ensure that the patient still needs to be made subject to the restriction measures under the new provisions?

Please select one item
Yes
No
Please give a reason for your answer
any restriction of liberty should have regular reviews

45. Do you agree that the lead clinician can only authorise renewal after review up to maximum of 3 months before Sheriff Court needs to be involved in review of the detention?

Please select one item
Yes
No
Please give a reason for your answer
this would be in keeping with ECHR article 5

46. What sort of support should be provided to enable the adult to appeal treatment and restriction measures?

Please select one item
Yes
No
Please give the reason for your answer
advocacy / legal representation - if unable to instruct then a curator should be appointed

Clarifying the provision of palliative care under Part 5 of the AWI Act where a welfare proxy disagrees with proposed treatment

47. Do you agree that section 50(7) should be amended to allow treatment to alleviate serious suffering on the part of the patient?

Please select one item
Yes
No
Please give a reason for your answer
Serious suffering should be sufficient - this does not always equate with serious deterioration in medical condition.

48. Would this provide clarity in the legislation for medical practitioners?

Please select one item
Yes
No

Part six: guardianship orders - medical reports

49. Do you think the requirement for medical reports for guardianship order should change to a single medical report?

Please select one item
Yes
No
Please give a reason for your answer
subject to a requirement for sufficient information as the quality of capacity reports varies greatly

50. Do you agree with our suggestion that clinical psychologists should be added to the category of professional who can provide these reports (where the incapacity arises by reason of mental disorder)?

Please select one item
Yes
No
Please give the reason(s) for any of your answers to questions 49 and 50 above
I would support this in relation to learning disability / neurodiversity but not in relation to mental illness

Mental Health Officer and Person with Sufficient Knowledge reports

51. Do you think the Mental Health Officer form for guardianships can be improved, to make it more concise whilst retaining the same information?

Please select one item
Yes
No
Please give a reason for your answer
I also think that at the time of the drafting of the application the proposed guardian should be provided with information in relation to what is required of a guardian and possibly given some equivalent of the guardian's declaration to complete (but with section 4 questions relating to welfare rather than finances e.g. how long have you known the adult, how often do you have contact with the adult etc) which could be provided to the MHO so that they do not need to repeat that information and could focus more on any areas of concern

52. Do you think the ‘person with sufficient knowledge’ form can be improved, making it more concise whilst retaining the same information?

Please select one item
Yes
No
Please give a reason for your answer
if this form is to be retained then should have more specific questions re knowledge of the adult including an understanding of the adult's financial circumstances (and questions similar to guardian’s declaration form)

53. Should the person with sufficient interest continue to be the person who prepares the report for financial and property guardianship?

Please select one item
Yes
No

54. Do you agree with our proposal to replace the second part of the ‘person with sufficient knowledge’ report with a statutory requirement to complete the OPG guardian declaration form?

Please select one item
Yes
No

Sheriff discretion to consider Mental Health Officer reports outwith 30 days limit

55. Should sheriffs be afforded the same discretion with mental health officer report timings as they are with medical reports?

Please select one item
Yes
No
Please give the reason(s) for your answer
but think there should be a 'time limit' on this (for both MHO and medical reports) as there is a difference in reports being lodged a week / few weeks out of date due to difficulties in co-ordinating timescales as opposed to reports being months out of date

Amendment of interim guardianship order for urgent cases

56. Do you agree that the best approach to cater for urgent situations is to amend the existing interim guardianship orders?

Please select one item
Yes
No
Please give a reason for your answer
this will depend on what is required in the abbreviated Mental Health Officer report given the suggestion is for a period of within seven days - this will be extremely difficult if there is a requirement to consult with nearest relative, primary carer, named person etc I am also not clear whether the information contained in this report will require to be repeated in any MHO report for guardianship

57. Do you agree that an abbreviated mental health officer report together with a single medical report should suffice for a guardianship order to be accepted by the court in the first instance?

Please select one item
Yes
No

58. Do you agree that there should be a short statutory timescale for the court to consider urgent interim applications of this sort?

Please select one item
Yes
No
Please give the reason for your answer
timescale of 5 calendar days but should only be granted if there is no person opposing the application otherwise needs to be continued for a sufficient period for anyone objecting to obtain legal advice etc

Variation of guardianship order to add financial or welfare powers

59. Do you agree that further medical reports are not required when varying a guardianship to add either welfare or financial powers?

Please select one item
Yes
No
Please give the reason(s) for your answer
capacity is decision dependant - it may be that the adult does not have capacity in relation to finances but does in relation to welfare (or vice versa) - may only require one medical report and a shortened additional mental health officer report, or ‘person with sufficient knowledge’ report (possibly with 'original reports' appended

Length of guardianship orders

60. Does the current approach to length of guardianship orders provide sufficient safeguards for the adult?

Please select one item
Yes
No
Please give a reason for your answer
three years should be the maximum period of time before renewal required

61. Do changes require to be made to ensure an appropriate level of scrutiny for each guardianship order?

Please select one item
Yes
No
Please give a reason for your answer
see above - it is also not clear where Chief Social Work Officer is named as guardian but this is delegated to a social worker who carries out review so that it is 'objective'

62. Is there a need to remove discretion from the sheriff to grant indefinite guardianships?

Please select one item
Yes
No

Adding additional exclusions to the Adults with Incapacity Act

64. Which of the following powers should guardians, attorneys and interveners be expressly excluded from using on behalf of the adult?

Please give a reason(s) for your answer(s)
I do not think it is possible to answer this question - a guardian, attorney or intervener may be able to identify the will and preference of the adult even if the adult is not able to fully understand 'the process' - for example there will be adult's whose views about divorce may be very clear even if they are not able to understand the court / legal process - ability to consent to sexual relations may change over time etc

Part seven: approach to deprivation of liberty

66. Do you agree with the overall approach we are proposing to address Deprivation of Liberty?

Please select one item
Yes
No
Please give a reason for your answer
I would fully support that where a person, is able to make an autonomous decision to express their consent to their living arrangements, even where these might amount to a DOL, this must be respected however if they are able to consent to this then that must question why the power is included in any guardianship or intervention order as to be able to give consent then that power is not required
I would also support that where it is possible to ascertain the person's will and preferences (even if they are not able to make an autonomous decision) in relation to their current living arrangements that should be respected even if those arrangements would otherwise constitute a DOL

67. Is there a need to consider additional safeguards for restrictions of liberty that fall short of Deprivation of Liberty?

Please select one item
Yes
No
Please give the reason for your answer
without knowing what is prosed as a definition of Deprivation of Liberty I do not know how to answer

Deprivation of Liberty and powers of attorney

68. Do you agree with the proposal to have prescribed wording to enable a power of attorney to grant advance consent to a Deprivation of Liberty ?

Please select one item
Yes
No
Please give the reason for your answer
I would support this but am unclear as to what the impact would be on any POA granted prior to any amendment but which clearly documented advance consent to DOL but not in the prescribed wording

69. What are your views on the issues we consider need to be included in the advance consent?

Please give the reason for your answer
However I am not clear why if there is no reason to question the granter's capacity (and their understanding of the powers they are granting including circumstances which they know are likely to result in a Deprivation of Liberty) require to be determined by independent medical assessment.

70. What else could be done to improve the accessibility of appeals?

Please give the reason for your answer
I am not clear on the position of an incapacitated adult who has granted advance consent but is clearly distressed in their current living arrangements (which amount to a DOL) but does not have anyone who can appeal against the Attorney's decision

71. What support should be given to the adult to raise an appeal?

Please give the reason for your answer
see q 70 - there is a role for advocacy (but am not clear who would make a referral to advocacy (even although there would be a legal right under MH(C+T)(S)A) and what steps advocacy could take to ensure an appeal is raised

72. What other views do you have on rights of appeal?

Please give the reason for your answer
see q 70, 71 - the most vulnerable adults are the ones who have very few (or possibly only one person - the attorney) who might raise an appeal

73. How can Deprivation of Liberties authorised by a power of attorney be appropriately reviewed?

Please give the reason for your answer
there could be a requirement on the Local Authority who already have a duty (under section 10) to investigate where an adult's welfare is at risk which could be extended to investigate any Deprivation of Liberty however there are already concerns re the frequency of LA supervision of guardianships. The MWC / Care Inspectorate could carry out reviews when they carry out a visit (in particular to a care home) but this will require a significant increase in resources.

Deprivation of Liberty and guardianships

74. Do you agree with the proposal to set out the position on Deprivation of Liberty and guardianships in the Adults with Incapacity Act?

Please select one item
Yes
No
Please give the reason for your answer
But if increasing time period for review to every six months this will require increased resources. if the adult is unable to request a review (due to their incapacity) and the CSWO is guardian (because there were no close family / friends) then I am not clear how an appeal could be raised

75. What are your views on the proposed timescales?

Please give the reason for your answer
I would support the time scales if available resources

77. What else could be done to improve the accessibility of appeals?

Please give the reason for your answer
I am not clear on the position of an incapacitated adult who is clearly distressed in their current living arrangements (which amount to a DOL) but does not have anyone who can appeal against the Guardian's decision

78. Do you agree with the proposal to have 6 monthly reviews of the placement carried out by local authorities?

Please select one item
Yes
No

79. Is there anything else that we should consider by way of review?

Please give the reason for your answer
A review every six months by the local authority may identify a DOL that is not necessary to safeguard the welfare or health of the adult. Even if that is accepted there is then a requirement for either a change in care plan or possibly a different placement. This depends on availability of resources and may also include an application to the Sheriff for directions. I am more unclear if the guardian is the CSWO and the review identifies a DOL that is not necessary what action is taken

Stand-alone right of appeal

80. Do you agree with our proposal for a stand alone right of appeal against a deprivation of liberty?

Please select one item
Yes
No

Deprivation of Liberty and Mental Welfare Commission

81. Do you agree with our proposal to give the Mental Welfare Commission a right to investigate Deprivation of Liberty placements when concern is raised with them?

Please select one item
Yes
No
Please give the reason(s) for your answer
The MWC could also carry out reviews when they carry out a visit (in particular to a care home) but this will require a significant increase in resources.

Appointment of safeguarders/curators ad litem

82. Do you agree with the proposals to regulate the appointment, training and remuneration of safeguarders in Adults with Incapacity cases?

Please select one item
Yes
No

83. Do you agree with the proposals for training and reporting duties for curators?

Please select one item
Yes
No

84. What suggestions do you have for additional support for adults with incapacity in cases to improve accessibility?

Please give the reason for your answer
I remain unclear as to why the Court would appoint both a curator and a safeguarder. If safeguarders are appointed by the court to represent and safeguard the best interests of adults with incapacity in legal proceedings and to ensure the views, wishes and welfare of the adults are fully considered surely curators in providing independent representation for individuals who are unable to represent themselves effectively in legal proceedings have to ensure that they ascertain the views wishes and welfare of the adult are taken into account.

Making financial abuse of an adult lacking capacity a criminal offence

85. Do you think there should be a specific criminal offence relating to financial abuse of an adult lacking capacity?

Please select one item
Yes
No
Please give the reason for your answer
I am unclear if this could also include the financial equivalent of 'neglect' where an adult is deprived of the benefit of their money

86. If so, should the liability be the same as for the welfare offence?

Please select one item
Yes
No
Please give the reason for your answer
However if there is evidence sufficient for other criminal charges like embezzlement, fraud or theft then the perpetrator should be subject to the 'higher tariff' charge.

Safeguards whilst awaiting discharge from hospital

87. Do you have experience of adults lacking in capacity being supported in hospital, despite being deemed to be no longer in need of hospital care and treatment? What issues have arisen with this?

Please select one item
Yes
No
Please give the reason for your answer
I am well aware of this situation - there is also an anomaly in that where health have established a 'step down ward / facility' the person can be moved there without any need for legal intervention. This ward / facility may providing care that is very similar to a care home setting. I have also seen CTOs (MH(C+T)(S)A suspension of detention used to facilitate discharge to a care home setting as a means of not having delayed discharge.

88. Do you foresee any difficulties or challenges with using care settings for those who have been determined to no longer need acute hospital care and treatment?

Please select one item
Yes
No
Please give the reason for your answer
I do not see an issue if all are in agreement (perhaps modifying Section 13 ZA (Soc Work (Scotland) Act) to allow this but only as an interim measure (and for a specified maximum period possibly three months) as currently section 13ZA is used even when there is a deprivation of liberty with no plans to make application for guardianship under AWI. all other requirements of sec 13ZA should apply i.e. the adult does not indicate disagreement with the proposed action, either verbally or through their behaviour / actions, the adult is likely to accept the care arrangements and interested parties, including professionals and the adult’s family/carer agree with the care intervention proposed.

Part eight: proposals to amend the Adults with Incapacity Act in respect of the governance of incapacitated adults participating in research

91. Should the AWI Act be amended to allow the creation of more than one ethics committee capable of reviewing research proposals involving adults lacking capacity in Scotland?

Please select one item
Yes
No
Please give the reason(s) for your answer
I would agree but only one additional committee (which has different membership) and are independent of each other to both ease any increased workload but also to allow review

Permitting adults with incapacity to be included in research studies without consent for the types of studies where consent is already not required from adults with capacity

92. In research studies for which consent is not required for adults with capacity to be included as participants, should adults with incapacity also be permitted to be included as participants without an appropriate person providing consent for them?

Please select one item
Yes
No
Please give the reason for your answer
if consent is not required from an adult with capacity then I would support this although I would have welcomed some examples of types of research referred to

93. Should Scotland A REC (or any other ethics committee constituted under Regulations made by the Scottish Ministers in the future) have the ability to determine that consent would not be required for adults with incapacity to be included as research participants, when reviewing studies for which consent would also not be required to include adults with capacity as research participants?

Please select one item
Yes
No

Pathways for emergency waivers of consent

94. Should the Adults with Incapacity Act be amended to allow researchers to consult with a registered medical practitioner not associated with the study and, where both agree, to authorise the participation of adults with incapacity in research studies in emergency situations where an urgent decision is required and researchers cannot reasonably obtain consent from a guardian, welfare attorney or nearest relative in time?

Please select one item
Yes
No
Please give the reason for your answer
I am not clear from the information whether capable adults can be enrolled without consent and this would determine my answer - if capable adults need to give consent then the same should be required - examples of this type of research would have been helpful as would an explanation as why 'emergency waivers' are required

95. Should the Adults with Incapacity Act be amended to allow researchers to enrol adults with incapacity in research studies without the consent of an appropriate representative of the adult, in emergency situations where a decision to participate in research must be made as a matter of urgency, where researchers cannot reasonably obtain consent from an appropriate representative of the adult, and where researchers act in accordance with procedures that have been approved by Scotland A REC (or any other ethics committee constituted by regulations made by the Scottish Ministers)?

Please select one item
Yes
No

Expanding the list of approved persons who can provide consent for adults with incapacity participating in research

96. Should the Adults with Incapacity Act be amended to permit researchers to nominate a professional consultee to provide consent for adults with incapacity to participate in research, in instances where researchers cannot reasonably obtain consent from a guardian, welfare attorney or nearest relative?

Please select one item
Yes
No
Please give the reason(s) for your answer
Researchers do not have the information to know the relationship between the person and their GP, social worker etc. I also have concerns about the use of the nearest relative for the same reason (which pertains to why nearest relative was replaced with named person under MH(C+T)(S)A).

Allowing adults with incapacity to participate in a wider range of research studies

97. In addition to being permitted to participate in research that investigates the cause, diagnosis, treatment or care of their incapacity, should the Adults with Incapacity Act be amended to allow adults lacking capacity to participate in research that investigates conditions that may arise as a consequence of their incapacity?

Please select one item
Yes
No
Please give the reason for your answer
this may benefit the person but my agreement is subject to a guardian or attorney with relevant powers consenting

98. In addition to being permitted to participate in research that investigates the cause, diagnosis, treatment or care of their incapacity, should the Adults with Incapacity Act be amended to allow adults lacking capacity to partake in research that investigates conditions they experience that do not relate to their incapacity?

Please select one item
Yes
No

99. Should the Adults with Incapacity Act be amended to allow adults with incapacity the opportunity to participate in any research regardless of whether the research explores conditions that relate to their incapacity or investigates conditions that they experience themselves?

Please select one item
Yes
No
Please give the reason for your answer
I do not see how any guardian / attorney could consent to this as I do not see any benefit to the person

About you

101. Are you responding as an individual or an organisation?

Please select one item
(Required)
Individual
Organisation