The Adults with Incapacity (Scotland) Act 2000 was one of the first laws established under the new Scottish Parliament formed in 1999, and predates the Mental Capacity Act by five years. While the two Acts do share a lot in common, there are also some key differences it is important to be aware of.
Assessing capacity
The Adults with Incapacity (AWI) Act is designed to uphold the rights of vulnerable adults who lack capacity, with a focus on welfare, finances and property. In this case, an ‘adult’ is anyone aged 16 or older, though the Act does recognise that those below this age may be shown to be Gillick competent for specific decisions.
Under the AWI, any decision-making process must start with a presumption of capacity, which can only be overruled with justifiable medical evidence of a lack of capacity. Incapacity is defined in Scottish law as being when an individual is ‘incapable‘ of making, communicating, understanding or retaining a specific decision. This must be shown to be as a direct result of a mental disorder, or that their physical disability causes an inability to communicate. As with the Mental Capacity Act, mental capacity is always decision-specific.
Further developments
The Adults with Incapacity Act (Scotland) came into force in the year 2000, with a second part added several years later with the Adult Support and Protection (Scotland) Act 2007. This builds upon specific regulations around the management of affairs for an adult with incapacity.
Alongside these developments there has been a growing body of case law across the United Kingdom, as well as in the European Court of Human Rights – both of which have led to further changes. Two key cases in this regard were Bournewood and Muldoon, both of which are discussed in a paper published in the International Journal of Mental Health and Capacity Law.
In the years following these two cases, between 2012–2014, the Scottish Law Commission completed a thorough report on Adults with Incapacity, reviewing its application and developments. As a result, it recommended amendments surrounding circumstances that may require a safeguarding authorisation to restrict liberties to leave a hospital or place of residence.
This set the foundation for reform. So much so that a consultation paper was launched in 2017. The proposals included:
- A graded system for Guardianships
- The provision of a supported decision-maker role
- Improved explanation of use of powers of attorney specifically within deprivation of liberty cases
- A new ‘placement order’ for short term placements to allow time for assessment
- Clarification of the interaction between Adults with Incapacity Act (2000) and the Adult Support and Protection (Scotland) Act (2007).
This consultation closed in 2018, and while the review and development remains an ongoing process, there are as yet no further updates at the time of writing, some five years later.