The Scottish Mental Health & Incapacity Law Review published the Final Report of its recommendations on 30 September 2022 :
One of the recommendations is an Autonomous Decision Making Test as a criterion for non-consensual treatment. This would replace Capacity and SIDMA (Significantly Impaired Decision Making Ability) Tests which are currently used under the Adults with Incapacity Act (roughly equivalent to the Mental Capacity Act) and the Mental Health (Care & Treatment) Act respectively. Criticisms of those tests are summarised on pages 248-9.
The proposed new test is broader than the Capacity and SIDMA tests by including “undue influence” as a criterion beyond any identifiable mental illness or mental impairment. It is intended that the test could apply outside of the above two Acts, such as in situations of Adult Support & Protection.
How the proposed new test would work is outlined on pages 251-3. This includes some criteria familiar from the Mental Capacity Act for England & Wales.
What I am seeking views on is whether the proposed Autonomous Decision Making Test, as it would apply under the Mental Health and Adults with Incapacity Acts, is fundamentally any different from a Capacity Test, and therefore whether it suffers from the same criticisms.