9th October 2024
Dear Minister,
Adults with Incapacity Amendment Act: Consultation
The Equality and Human Rights Commission (The Commission) welcomes the opportunity to respond to the Scottish Government’s consultation on an Adults with Incapacity Amendment Act.
The Equality and Human Rights Commission is Britain’s equality and human rights regulator. Our human rights powers in Scotland extend to reserved matters. The Scottish Human Rights Commission has a mandate to promote and protect human rights in Scotland that fall within the competence of the Scottish Parliament.
Principles
We welcome the proposal to change the existing principles of the legislation to give priority to the individual’s will and preferences over the views of the nearest relative, guardian, attorney or named person, before any decisions about an adult’s life are taken.
All steps should be taken to consider the individual rights, will and preferences of a person, before considering the views of a third party. This must include ensuring reasonable adjustments are in place, as required by Section 20 of the Equality Act 2010. Access to free independent advocacy and to a reformed, accessible and fair process for supported decision making is also necessary.
Supported Decision Making
We welcome that the Scottish Government is undertaking work to establish a baseline for current supported decision-making processes across Scotland and will use this to draft a new model.
This new draft model should reflect equality considerations, particularly intersectionality and the experience of people experiencing multiple barriers to participating in decision making. The appropriate public body central to implementing this new model of decision making will be required to meet its Public Sector Equality Duty (PSED) obligations in this regard.
An Equality Impact Assessment must be carried out to inform any changes to the current model of supported decision-making processes, to ensure individuals with any protected characteristics are not unfairly impacted by this change. Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 requires this in relation to proposed new or revised policy or practice.
Power of Attorney
We welcome the proposal to introduce mandatory training, support and guidance for attorneys. This should include robust equality-informed training, including explaining the reasonable adjustments duty within the Equality Act (2010) and unlawful discrimination.
We also welcome proposals for enhanced safeguards around powers of attorney, including powers for the Office of the Public Guardian to refuse to register a power of attorney if there is any dispute about capacity. This is vital, particularly in the context of known cases of financial, physical, and emotional abuse where powers of attorney had been purportedly granted, despite the granter not having full capacity.
The provision of accessible advice and support for guardians and attorneys is of fundamental importance. To ensure this happens in practice, Scottish Ministers should place a duty on an appropriate body to provide advice and support to guardians and attorneys. This includes making sure there is advanced understanding of how, in exercising the role, the attorney: supports the exercise of legal capacity; identifies and articulates the will and preferences of the adult; and meets the duty to make reasonable adjustments and other obligations under equality legislation.
Access to Funds and Management of Residents' Finances
Adequate safeguards should remain in place within the Access to Funds or Management of Residents’ Finances Systems to prevent financial abuse of disabled people that have been found to not have capacity to make financial decisions.
An Equality Impact Assessment must be carried out to inform any changes to the current Access to Funds or Management of Residents’ Finances systems, to ensure disabled people are not unfairly impacted by this change. Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 requires this in relation to proposed new or revised policy or practice.
Authorisation for Medical Treatment
We do not support proposals within the consultation document to extend the range of professionals who can carry out capacity assessments. We have concerns about extending the power of professionals who can authorise medical treatment to include the power to assess capacity and detain an adult. Only appropriately qualified professionals should be responsible for carrying out such complex and life impacting assessments. In particular, we are concerned about possible discrimination or unfair treatment of disabled people being incorrectly assessed as having incapacity.
We recommend that effective safeguards are built into legislative changes around Section 47 – including a requirement that the medical practitioner records:
- The steps taken to assess capacity.
- The steps taken to respect the rights, will and preferences of the adult.
- The steps taken to support the exercise of legal capacity.
- Where possible, a description of the ascertained will and preferences of the adult.
- If valid consent has not been obtained, an explanation of why the proposed care and treatment is ‘proportionate and necessary’.
- Confirmation that they have met the duty to provide support to exercise legal capacity.
- Confirmation that they have met the ‘necessary and proportionate’ duty.
It is the Commission’s view that all formal care and treatment decisions taken on the basis that a person lacks capacity should be recorded and retained in line with data protection regulations. This will enhance accountability and compliance with existing equality legislation to prevent discrimination or unfair treatment on the basis of disability.
Use of Force or Detention
We remain concerned about the illegal and unregulated use of force or detention in mental health settings.
The use of force or detention in response to distressed behaviour by adults who may lack capacity, when unregulated or used inappropriately, can put individuals at risk and have a negative impact on health and wellbeing. We have made clear in our previous consultation responses on Adults with Incapacity Reform, that use of physical force or restraint can amount to an unlawful detention or deprivation of liberty if used inappropriately.
We share the concerns of the Mental Welfare Commission, the Royal College of Psychiatrists, and the Scottish Human Rights Commission that current provision on the use of force or detention lacks adequate clarity or safeguarding.
If not within this legislation, then within the broader Scottish Mental Health Law reform process, particular consideration should be given as to whether further amendments to the detention criteria are required to ensure that people who share protected characteristics are not disproportionately or discriminatorily detained and treated under the Act.
Detention Criteria and Process
Any adult who wishes to contest their stay in hospital under Section 47, should be given assistance to appeal this decision in the form of accessible, independent advocacy. A statutory right to free independent advocacy should be embedded within the legislation to ensure this is enforceable and resourced.
The current Mental Health (Care and Treatment) (Scotland) Act 2003 already provides a similar statutory right to independent advocacy. Free independent advocacy, that is resourced, is vital to ensure individuals are able to participate in decisions about their care equally and without discrimination.
We agree with the proposals that detention should be time-limited, the end date fixed and that the adult and their family/ proxy/ guardian should be able to appeal the detention. If the period of detention is for longer than 28 days, there should be an automatic review by the Sheriff court to prevent infringement of an individuals’ rights.
During the 28-day period the need for detention should be subject to regular review by the medical practitioner and a record kept of why detention continues to be proportionate and necessary.
The Scottish Government should further look at the incidence and impact of immediate re-detention on protected characteristic groups, to ascertain whether there are any disproportionate impacts which could be mitigated through reform.
Data gaps regarding the protected characteristics of those being detained and treated, and in what circumstances, should also be addressed.
Addressing data gaps regarding the protected characteristics of individuals detained would assist the relevant public bodies’ compliance of the Scotland Specific Duty obligations, in particular the duty to assess and review policies and practices, such as detainment, to:
- eliminate discrimination, harassment, victimisation, and any other conduct that is prohibited by or under the Equality Act (2010).
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
Approach to Deprivation of Liberty
We agree with the Scottish Mental Health Law Review recommendation that the Mental Welfare Commission should have the power to intervene if they have concerns about deprivation of liberty, and that this should be extended to include power of investigation of any adult deprived of their liberty under the AWI Act.
Interim Guardianship
We acknowledge the proposed amendment of interim guardianship orders for urgent cases, allowing for an interim order to be applied for separately and used swiftly when an order is required.
Interim guardianship orders can be used in urgent cases to ensure a move to more appropriate care settings and prevent an illegal deprivation of liberty, protecting patient rights. However, we would caution against the proposal for reduced medical reports and evidence required in the application process, particularly if the range of professionals who can carry out capacity assessments are extended.
Any amendments to the interim guardianship order process must be made in line with adequate safeguards, ensure knowledgeable and trained medical professionals are undertaking capacity assessments and ensure a right to free, independent advocacy to support patients to question or challenge decisions.
In particular, we are concerned about the impact the above changes would have on disabled and older people and any discrimination or unfair treatment they may face within the capacity assessment or guardianship order process.
Guardianship
As mentioned earlier in our response, we do not support proposals within the consultation document to extend the range of professionals who can carry out capacity assessments.
We remain concerned that the focus of proposed changes to guardianship in this legislation appears to be on simplifying or speeding up the process of obtaining guardianship powers, for example by reducing the medical reports required for a guardianship order and that this may have taken precedence over the protection and promotion of an individual’s rights.
We note the findings of a survey of welfare guardians undertaken by the Mental Welfare Commission showed that 91.2% of guardianship orders (2022-3) were granted within two months or less and highlighted that guardians were primarily concerned about a lack of support from social work or respite, rather than the process of the order itself.
The provision of accessible advice and support for guardians and attorneys is fundamental. To ensure this happens in practice, Scottish Ministers should place a duty on an appropriate body to provide advice and support to guardians and attorneys, as detailed earlier in this response.
Free, independent, and accessible advice to patients themselves is also vital to protect individuals’ rights and ensure they are upheld. A statutory right to free independent advocacy should be embedded within the legislation to ensure this is enforceable and resourced.
Evidence
Throughout the Scottish Mental Health Law Review process, we recommended that a solid evidence base, informed by the lived experience of groups such as disabled peoples’ organisations should be developed to inform the Scottish Ministers’ equality impact assessment of any changes to Adults with Incapacity Legislation.
This is not only good practice but will help Scottish Government compliance under the Public Sector Equality Duty.
We hope that you will find our submission helpful, and we would be pleased to meet to follow up with you or your officials on any of the points.
Yours sincerely,
John Wilkes
Head of Scotland