Aim: To provide an understanding of the legal framework in Scotland relating to adults with cognitive impairment, to explain what the term ‘capacity’ means and how it should be assessed.
The Adults with Incapacity (Scotland) Act 2000 (AWI Act) was passed by the Scottish Parliament. The AWI Act is one of the most advanced pieces of legislation in the world in promoting the welfare of adults with cognitive impairment. This legislation has been underpinned by the following:
- The European Convention on Human Rights
- The Equality Act 2010
- The United Nations Convention on the Rights of Persons with Disabilities
AWI legislation requires that the person’s capacity must be assessed in relation to each particular decision in question (e.g. where to live, what care is required). Capacity is not an ‘all or nothing’ concept and should be regarded as decision specific rather than being based on the person’s disability or condition. For example, just because a person has been given a diagnosis of dementia does not mean that they are completely incapable of making any decisions.
Following an Acquired Brain Injury, the person may still be capable of making some decisions with appropriate support about certain aspects of their ongoing care and treatment. Any question about capacity should be considered in relation to specific decisions.
Please click on the links below for further information with regard to assessment of capacity.
Capacity: A Legal Definition
Assessment of Capacity
Factors Affecting Capacity Following Acquired Brain Injury
The AWI legislation sets out the criteria and procedures to be followed when making decisions for adults who are deemed to lack the capacity to make these decisions for themselves. It also provides guidelines to try to ensure that those with cognitive impairment can continue to make decisions about some aspects of their care and treatment, where possible.
The AWI Act is based on a set of guiding principles, which must be observed in relation to any intervention in relation to the affairs of the person who is deemed to lack capacity. Whatever the context in which decisions are made, one must work in partnership with the person involved, their family and carers. It is important to:
- Listen to the person and take their views into consideration.
- Take into consideration any ‘Advanced Statement’, where the person may have previously recorded their views on a particular matter.
- Listen to the views of family members and carers, taking their views into consideration.
- Provide the person with the necessary information and support to make decisions for themselves, where possible.
Please click on the link below for further guidance.
The AWI Act offers a range of options to assist an adult who lacks capacity to make decisions and manage complex welfare matters. It is designed to provide measures of protection which are individually tailored to the person’s circumstances. The Act is geared towards necessary interventions being carried out by relatives and friends where possible utilising Welfare and Financial Guardianship legislation.
A Power of Attorney allows the person to plan in advance what they want another person to do for them in the future, should they become incapable of making decisions about their own affairs. It is a written document which includes a certificate signed either by a solicitor who is registered to practice law in Scotland or by a UK medical doctor. A Power of Attorney can only be made if the person is deemed ‘capable’ i.e. they are required to put in place Power of Attorney prior to losing capacity.
Should the person who has been assessed as lacking capacity require medical/dental care and treatment, AWI should be utilised: