SIAA have responded to the Scottish Government’s Adults with Incapacity Amendment (AWI) Act consultation. The consultation is about updating the AWI Act to reflect the significant changes in both legislation and case law as well as recommendations from the Scottish Mental Health Law Review (SMHLR). The Scottish Government say this is the first step in a wider programme of work to reform mental health and incapacity law in Scotland over the next ten years.
The consultation is seeking views on suggestions for change to the AWI Act that aim to
- Improve access to justice for adults affected by the AWI Act
- Shift the focus of the AWI Act to one that truly centers on the adult
- Enable adults to access rights more easily
- Ensure adults are supported to make and act upon their own decisions for as long as possible
- When an adult cannot make their own decisions despite support, ensure that their will and preferences are followed unless doing so would be to the overall detriment of the adult.
- Set out proposals for reform concerning authority for research.
For the AWI Act Amendments to successfully increase realisation of human rights for people in Scotland independent advocacy must be strengthened.
SIAA welcome the mention of independent advocacy in the consultation overview as a ‘means of empowering people to have their voices heard and realise their rights.’ In our response SIAA call on the Scottish Government to implement SIAA’s specific recommendations, namely:
- Include an explicit right of access to independent advocacy for people under the updated AWI Act
- Use guidance to adopt an ‘opt-out’ signposting pathway for independent advocacy provided in connection with the Act
- Adopt the definition of independent advocacy agreed by SIAA members and include it in the Act and guidance
- Increase understanding of independent advocacy as a supported decision-making tool
- Sustainably increase provision of and resourcing for independent advocacy organisations.
It is important for the Scottish Government to take stock of the fact that the proposed changes to the principles of the Act are years in the making. People under the Act, civil society organisations, disabled people’s organisations, as well as our national human rights institution, and the Mental Welfare Commission, have advocated and campaigned for this shift to a human rights-based approach to AWI legislation for many years.
One of the most effective ways to ensure that ‘practicable steps’ are taken to ascertain will and preferences is increasing access to and understanding of independent advocacy. Independent advocates are human rights defenders. The role is unique in that it does not work in best interests and actively minimises conflicts of interest and undue influence. An independent advocacy worker supports people to have their voice heard and specific views taken seriously. Scotland is very fortunate that independent advocacy is already well established across many local areas and has worked successfully for decades to enable supported decision-making for those with access.
Independent advocacy is ready made to support the realisation of these aims of an amended AWI Act. When sustainably resourced, independent advocacy expands understanding of human rights, enables accountability mechanisms and embeds participation creating the context for services to uphold right, understand peoples’ views and for people to feel truly listened to and included. SIAA urge the Scottish Government to carefully consider our 5 asks and engage with SIAA and our member organisations to
develop them. Implementing our asks would allow supported decision-making to thrive under an updated AWI Act.
