Working together towards a Learning Disabilities, Autism and Neurodivergence Bill: March 2026 Current proposals for potential Bill provisions

Part 2: Bill proposals

This section sets out the Bill’s potential proposals. These aim to strengthen access to rights, enhance accountability and improve supports and services for neurodivergent people and people with learning disabilities, in an integrated way. They are intended to provide a clear legal foundation on which more detailed actions can be built and evolve over time, as understanding and best practice evolve, and new priorities emerge.

Together, the proposals would aim to deliver: an improved integrated approach; a cultural shift; strengthened local and national leadership; improved planning; and, a meaningful step-change in outcomes.

2.1 Reach and definitions: who should the Bill include?

Fundamental to the proposed LDAN Bill would be a clear definition of who could benefit from its provisions and in what circumstances. This means that the Bill would need to set out which groups of people it will apply to, its ‘reach’. Those groups would also need to be properly defined so that the Bill’s provisions are able to benefit the people it is intended for. Therefore, good ‘definitions’ about the groups of people within the Bill’s reach is important.

It is currently intended that all provisions would be underpinned by the umbrella definition of ‘neurodivergence’ as the description of who is within the Bill’s reach. This presents an opportunity for Scotland to establish a ground-breaking legal definition, aligned with how people prefer to describe themselves.

The term neurodivergence, which has been used internationally since the 1990s, is considered to:

• align with the social model of disability;
• incorporate a neuro-affirming approach;
• reflect the preferred term for many people with lived experience that they identify with and use; and
• support self-identification when formal diagnosis is not desired or can be difficult to obtain.

Currently, Scotland has no legislation specifically defining or referring to autism or other neurodivergent conditions. Learning disability is defined within the Mental Health (Care and Treatment) (Scotland) Act 2003 and practice has led to autism being considered as being included within this term, even though it is not listed within the legislation itself.

In Scotland (and in England and Wales), some people with learning disabilities and some neurodivergent people can be covered by the Equality Act 2010 if their individual circumstances align with its definition of disability, but this is not an automatic qualification.

The Bill consultation gave three options on the Bill’s reach and definitions. The most supported option amongst consultation respondents, and from our subsequent Bill Advisory Panel meetings, was the overarching definition of ‘neurodivergence’ and ‘neurodivergent people’. This definition in large part met with consultation respondents’ preferences that the Bill’s definition should: be broad enough to include the wide range of appropriate conditions; align with the social model of disability; and, therefore, align with the principle that the Bill should not take an overly medicalised approach.

We also recognise some people’s concerns that there are risks in defining the Bill’s reach too broadly, and that this should be avoided to ensure it can benefit those who need it most whilst also providing sufficient visibility to people and conditions with specific support needs.

Some consultation respondents supported an alternative proposal that the Bill should only list and define specific conditions, without an overarching definition. Respondents supporting this option thought that it would better ensure that all conditions were equally prioritised and were concerned that ‘neurodivergence’ would be too vague a definition to be able to ensure that all conditions received the right support. Some respondents thought that a solution to this would be to have an overarching definition in the Bill but also listing all conditions covered by the Bill.

What could the Bill say and do?

We currently propose that ‘neurodivergence’ and therefore ‘neurodivergent people’ could serve as the Bill’s overarching definition. We think that the Bill could also list conditions that fall within this definition, as well as those that do not. We have yet to decide whether to list all or only some of the conditions that either fall within or outside this definition. As a minimum, we think the Bill should list conditions such as learning disabilities, Down’s Syndrome, ADHD and autism as falling within the Bill’s reach but note this would be a decision for a future government to take should it decide to continue the Bill’s development.

We do not believe that use of the term ‘neurodivergence’ is incompatible with the way in which services in Scotland are provided. For example, we do not think that it will prevent support related to a specific condition where appropriate.

We also acknowledge that the global understanding of neurodivergence may change over time. As such, we think that the Bill should include the ability to update the list of conditions which either do or do not fall within the definition of neurodivergence. This would mean an ability to change this by secondary legislation in the future, after the Bill becomes law, if and as required.

Diagnosis

We do not think that a formal diagnosis should be required for what the Bill aims to achieve, however, that will be a decision for a future government to take as the Bill is further refined should it decide to continue the Bill’s development.

Conditions not within the Bill’s reach

We know that for the Bill to be impactful it needs to focus on those who need it most. Several suggestions were made during the consultation about which conditions should be outside the Bill’s reach. We are giving careful thought to this issue following further engagement with the Bill Advisory Panels and have not reached any firm views on which conditions should be listed as being outside the Bill’s reach.

2.2: National strategy, local delivery plans and guidance

The proposal for a statutory national strategy, local delivery plans and statutory guidance represent the primary mechanism for delivering the Bill’s aims. These measures could set out how national leadership, local leadership and consistent practice should work together, and, help to shape how relevant public bodies plan, deliver and evaluate supports and services for neurodivergent people and people with learning disabilities.

The key proposals are:

1. A national strategy evaluated and refreshed every five years by the Scottish Ministers, with mandatory content and meaningful involvement of people with lived experience.

2. Local delivery plans prepared and published by health boards, local authorities and potentially other public bodies, aligned to the national strategy to ensure its effective implementation. This would include progress reports to the Scottish Ministers annually and a duty to evaluate and refresh every five years aligned with the national strategy cycle.

3. Statutory guidance provided by the Scottish Ministers to support public bodies in carrying out their functions to implement the national strategy via local delivery plans, promoting best practice and cross-sector collaboration.

Together, these measures would aim to deliver a better integrated, multi-sector, rights-based and transparent approach to service planning and delivery across Scotland – strengthening accountability and improving outcomes for neurodivergent people and people with learning disabilities.

By specifying essential elements of each duty on the face of the Bill, this approach would provide clarity about what must always be included in the national strategy and local delivery plans, and in turn strengthen accountability to Parliament and the public, to ensure that these duties remain meaningful and effective over time.

This approach aligns with, and also aims to learn from, similar legislative approaches within Scotland or elsewhere, which are designed to improve supports and services, or promote equality of opportunity for particular groups of people. For example:

• The Autism Act 2009 (England)
• The Autism (Northern Ireland) Act 2011
• The Down Syndrome Act 2022 (England)
• The Welsh Code of Practice on the Delivery of Autism Services
• The British Sign Language (Scotland) Act 2015
• The Child Poverty (Scotland) Act 2017
• The Federal Framework on Autism Spectrum Disorder Act 2023 (Canada)
• The Persons Within the Autism Spectrum (Empowerment) Act 2016 (Malta)

What could the Bill say?

We currently propose that the potential Bill could include a requirement and duties in relation to a national neurodivergence and learning disabilities strategy, local neurodivergence and learning disabilities delivery plans, and supporting statutory guidance.

We understand that national and local strategic approaches are an integral part of ensuring transparency, accountability and driving cultural change. We think that the Bill could set out what must always be addressed in the national strategy. Local delivery plans could help to ensure effective implementation of the national strategy and so the Bill could also set out what must always be addressed in those too.

To support implementation of the national strategy and the Bill more generally, and to provide support to public bodies on their duties under the Bill, we think that a duty could be placed on the Scottish Ministers to provide statutory guidance which aims to:

• Support implementation of the national strategy and local delivery plans.
• Promote multi-disciplinary and cross-sector collaboration, including with the third sector and people with lived experience.
• Provide guidance on how to develop local delivery plans and what should be included.
• Be regularly updated and reflect evolving evidence and best practice.
• Be consulted on, including with people with lived experience.

Statutory guidance is not legislation but sets out general principles and expectations on how the law should be applied in practice.

The following draft provisions illustrate how this could be drafted within a potential future Bill. It is important to note that these draft provisions are provided for illustrative purposes only. This paper does not commit any future government to any specific policy positions on any of the Bill’s potential provisions. Its aim is to support greater openness and transparency by explaining the current stage of policy development. This means that the following illustrative draft provisions reflects the current stage of policy development and analysis only. All proposals remain subject to further policy development, detailed legal assessment, and Ministerial decision-making, and may therefore be amended, refined, or withdrawn as work progresses, should a future government decide to continue with the Bill’s development.

Part 1

Neurodivergence and learning disabilities strategy and delivery plans

National neurodivergence and learning disabilities strategy

1 National neurodivergence and learning disabilities strategy

(1) The Scottish Ministers must prepare a national neurodivergence and learning disabilities strategy (referred to in this Act as the “national strategy”) to promote—

(a) awareness and understanding of the needs of neurodivergent people and people with learning disabilities, and

(b) the meeting of those needs.

(2) The national strategy—

(a) must set out the approach the Scottish Ministers consider should be taken in relation to—

(i) how awareness and understanding of neurodivergence and learning disabilities and of the needs of neurodivergent people and people with learning disabilities, and of the families and carers of neurodivergent people and people with learning disabilities is to be promoted,

(ii) how the needs of neurodivergent people and people with learning disabilities are to be identified and addressed,

(iii) how the needs of the families and carers of neurodivergent people and people with learning disabilities are to be identified and addressed,

(iv) training on how best to address the needs of neurodivergent people and people with learning disabilities,

(v) such other matters that the Scottish Ministers consider appropriate,

(b) must include provision for assessing the effectiveness of the strategy,

(c) may include any other information that the Scottish Ministers consider appropriate.

(3) In preparing the national strategy, the Scottish Ministers must—

(a) take a multidisciplinary and cross-sectoral approach,

(b) seek the participation of neurodivergent people and people with learning disabilities and the families and carers of neurodivergent people and people with learning disabilities.

(4) The Scottish Ministers may, by regulations, modify subsection (2) to add, vary or remove something for the time being mentioned there.

(5) Regulations under subsection (4) are subject to the affirmative procedure.

Consultation on and publication of national strategy

2 Consultation on draft national strategy

(1) In preparing the national strategy, the Scottish Ministers must publish a draft strategy and consult—

(a) neurodivergent people and people with learning disabilities,

(b) the families and carers of neurodivergent people and people with learning disabilities,

(c) such persons as the Scottish Ministers consider may have an interest in the strategy, including public sector, private sector, charitable and international organisations,

(d) such other persons as they consider appropriate, and

(e) the general public.

(2) For the purposes of subsection (1), it is immaterial that anything done by way of consultation was done before the Bill for this Act was passed or after that but before this section comes into force.

3 Publication of national strategy

(1) The Scottish Ministers must—

(a) publish the national strategy in such form and manner as they consider appropriate, having regard to the need to do so in a form and manner that is accessible to neurodivergent people and people with learning disabilities, and

(b) lay a copy of the strategy before the Scottish Parliament.

(2) Subsection (1) must be complied with before the end of the period of 2 years beginning with the day on which this section comes into force.

(3) As soon as practicable after complying with subsection (1), the Scottish Ministers must—

(a) publish a report setting out—

(i) the consultation process undertaken in order to comply with section 2, and

(ii) the ways in which, in preparing the national strategy, the Scottish Ministers have taken account of views expressed in the course of that process, and

(b) lay a copy of the report before the Scottish Parliament.

Review of national strategy

4 Review etc. of national strategy

(1) The Scottish Ministers—

(a) must keep the national strategy under review,

(b) may revise it as they consider appropriate.

(2) Before the end of each review period, the Scottish Ministers must either—

(a) revise the national strategy, or

(b) if they do not intend to revise it, publish a statement of the reasons for that.

(3) For the purposes of this section, “review period” means—

(a) the period of 5 years beginning with the day on which the first version of the national strategy is published under section 3, and

(b) each subsequent period of 5 years.

(4) This section and sections 1(2) and (3), 2 and 3 apply in relation to any revised national strategy as they apply in relation to the first national strategy.

Local neurodivergence and learning disabilities delivery plans

5 Local neurodivergence and learning disabilities delivery plans

(1) Each listed public body must prepare a local neurodivergence and learning disabilities delivery plan for their area (referred to in this Act as a “local delivery plan”) to ensure the effective implementation of the national strategy.

(2) A local delivery plan must, in so far as relevant to the listed public body preparing the plan, include provision on—

(a) the assessment and diagnosis of neurodivergence and learning disabilities,

(b) pre- and post-diagnostic support for neurodivergent people and people with learning disabilities,

(c) data collection and reporting on neurodivergence and learning disabilities, including in particular, on—

(i) the prevalence of neurodivergence and learning disabilities in the listed public body’s area, and

(ii) outcomes for neurodivergent people and people with learning disabilities in that area,

(d) support in the community for neurodivergent people and people with learning disabilities and how such support can be improved through better knowledge and understanding of neurodivergence and learning disabilities and of the needs of neurodivergent people and people with learning disabilities,

(e) how local workforce planning should take account of the needs of neurodivergent people and people with learning disabilities,

(f) financial planning in relation to neurodivergent and learning disabilities populations,

(g) monitoring and evaluation methods to measure delivery of the local delivery plan.

(3) In preparing their local delivery plan, a listed public body must—

(a) comply, in so far as reasonably practicable, with the national strategy, and

(b) have regard to guidance published by the Scottish Ministers under section 6.

(4) In preparing their local delivery plan, a listed public body must publish a draft plan and consult—

(a) neurodivergent people and people with learning disabilities,

(b) the families and carers of neurodivergent people and people with learning disabilities,

(c) such persons as the listed public body considers may have an interest in the plan, including public sector, private sector, charitable and international organisations,

(d) such other persons as they consider appropriate, and

(e) the general public.

(5) For the purposes of subsection (4), it is immaterial that anything done by way of consultation was done before the Bill for this Act was passed or after that but before this section comes into force.

(6) The Scottish Ministers may by regulations modify subsection (2) to add, vary or remove a matter for the time being mentioned there.

(7) In this section and in sections 6 to 8, “listed public body” means—

(a) each local authority,

(b) each health board constituted under section 2(1)(a) of the National Health Service (Scotland) Act 1978,

(c) such other persons or bodies as the Scottish Ministers may by regulations specify.

(8) Regulations under subsections (6) and (7)(c) are subject to the affirmative procedure.

6 Publication of local delivery plans

(1) Each listed public body must publish their local delivery plan in such form and manner as they consider appropriate, having regard to the need to do so in a form and manner that is accessible to neurodivergent people and people with learning disabilities.

(2) Subsection (1) must be complied with before the end of the period of 1 year beginning with the day on which the first national strategy is published.

7 Review etc. of local delivery plans

(1) Each listed public body—

(a) must keep their local delivery plan under review,

(b) may revise it as they consider appropriate.

(2) Before the end of each review period, each local public body must either—

(a) revise their local delivery plan or

(b) if they do not intend to revise it, publish a statement of the reasons for that.

(3) For the purposes of this section, “review period” means—

(a) the period of 5 years beginning with the day on which the first version of the listed public body’s local delivery plan is published under section 6,

(b) the period of 10 years beginning with the day on which the first version of the national strategy is published under section 3, and

(c) each subsequent period of 5 years.

(4) This section and sections 5(2) to (5) and 6 apply in relation to any revised local delivery plan as they apply in relation to the first local delivery plan.

Guidance

8 Guidance on neurodivergence and learning disabilities

(1) The Scottish Ministers must prepare guidance for listed public bodies on—

(a) the preparation and content of local delivery plans, and

(b) the exercise by listed public bodies of their functions in relation to ensuring the effective implementation of such plans.

(2) In preparing guidance under subsection (1), the Scottish Ministers must publish draft guidance and consult—

(a) neurodivergent people and people with learning disabilities,

(b) the families of neurodivergent people and people with learning disabilities,

(c) such persons as they consider may have an interest in the plan, including public sector, private sector, charitable and international organisations,

(d) such other persons as they consider appropriate, and

(e) the general public.

(3) For the purposes of subsection (2), it is immaterial that anything done by way of consultation was done before the Bill for this Act was passed or after that but before this section comes into force.

(4) The Scottish Ministers must—

(a) publish the guidance in such form and manner as they consider appropriate, having regard to the need to do so in a form and manner that is accessible to neurodivergent people and people with learning disabilities, and

(b) lay a copy of the guidance before the Scottish Parliament.

2.3: Mandatory training in the public sector

Mandatory training for public sector employees is consistently highlighted by stakeholders and people with lived experience as a measure that could make a real difference. We agree that training is a key way to increase awareness and understanding of needs and how to meet them within public services. This aligns with international practice, where many jurisdictions have taken positive steps to improve employee training on neurodivergence and learning disabilities. By introducing consistent mandatory training on neurodivergence and learning disabilities, it is anticipated that employees could gain better awareness and understanding of needs and lead to higher-quality, more sustainable services. Greater awareness across public services could also help drive a positive cultural and attitudinal shift across society.

Mandatory training could also support:

• implementation of the national strategy and local delivery plans;
• actions around inclusive communication;
• delivery of independent advocacy; and,
• strengthened local and national leadership and accountability mechanisms.

We fully recognise the financial and resource pressures Scotland is currently facing across frontline services, the public sector, and society as a whole. We would therefore aim to develop a mandatory training package that is deliverable, effective, sustainable and genuinely helpful to public sector employees, many of whom have expressed support for improved and better access to training.

Mandatory training was identified as the highest priority by most respondents to the consultation. The majority of people with lived experience supported this proposal, alongside many organisations, including the Care Inspectorate, several Health Boards, professional groups, and Royal Colleges. Most agreed that greater awareness and understanding is essential for rights to be realised in practice.

We can also learn from the experience of mandatory autism and learning disability training introduced in England by the Health and Care Act 2022. This Act requires all health and social care providers registered with the Care Quality Commission to provide training appropriate to employees. The UK Government has issued a statutory code of practice setting minimum standards for the training programme, and otherwise recommends the Oliver McGowan Training programme.

Evidence presented to the House of Lords Inquiry on the Autism Act 2009 highlighted that the Oliver McGowan training has been powerful and helpful, with 3 million people trained to date. Evaluation of early pilots showed improvements in attendees’ knowledge, skills, and confidence. A cost-benefit analysis anticipates the training will help reduce health inequalities, improving the quality of care and reducing avoidable deaths.

We continue to learn from existing training in Scotland and from the engagement with the Bill Advisory Panels.

What happens now?

For many years, we have worked alongside public and third sector partners to improve both the volume and quality of training. This began with the training sub-groups established under the Scottish Strategy for Autism and the Keys to Life Strategy. Subsequent policies and strategies have consistently prioritised training.

However, uptake of this training remains voluntary rather than mandatory. Evidence from the Bill consultation, Bill Advisory Panels and other sources shows that neurodivergent people and people with learning disabilities continue to experience significant health inequalities and poorer outcomes. Neurodivergent individuals are also disproportionately represented in the criminal justice system.

We have heard that:

• training rarely involves co-design with people with lived experience;
• there is limited training available on neurodivergence, beyond autism and learning disabilities;
• existing training is inconsistent and lacks standardisation;
• public sector employee confidence in supporting neurodivergent people and people with learning disabilities is low;
• employees can sometimes feel unable to access learning opportunities;
• experiences of care reported by people with lived experience are poor; and,

• tackling health inequalities requires removing barriers to access and improving service quality to better meet needs.

What could the Bill say and do?

We could establish a national mandatory training programme that better equips public sector staff with the confidence, skills, and competence to understand the needs, experiences, and behaviours of neurodivergent people and people with learning disabilities, and how to meet those needs. Crucially, this training would need to be co-designed with people who have lived experience. Many public sector employees also have personal or family experience of neurodivergence or learning disabilities, so the training could support them too.

We anticipate that this programme could help to reduce health inequalities, create more efficient and sustainable services, and foster a more inclusive culture within public services.

The mandatory training proposal would need to involve legislative as well as non-legislative measures. Key questions remain, such as which sectors the duty should apply to, and if it should apply to all staff or only some specific roles. There may also be limits on the ability of Scottish legislation to introduce mandatory training for every group in the health sector, or, within the social care sector where many providers are private companies. These issues will need to be addressed in any future phase of the Bill’s development.

Alongside the legislation, a national training programme and supporting resources would need to be developed.

At this stage, we believe the proposed Bill could require employers in health, social care, and justice sectors to provide mandatory training, with the option to extend this duty over time. Training should be tailored to staff roles, and voluntary access to the training would remain available for all employees. We think that this duty could be accompanied by a legal requirement for the Scottish Ministers to set out in statutory guidance, or a statutory Code of Practice, the training expectation and to provide guidance on which staff groups should receive the training on a mandatory basis. This would allow the guidance or Code to be updated over time as the landscape, practice and understanding evolves.

It is intended that the training could start with the health, social care and justice sectors because of the evidenced inequalities that exist. Within the justice sector, we know that neurodivergent people are over-represented in the criminal justice system. Small cultural changes and reasonable adjustments could have significant impacts on the administration of justice, and we believe mandatory training could be one of the key ways to achieve this.

A phased approach

Rolling out training to a large proportion of Scotland’s public sector workforce would be an ambitious and significant undertaking. As such, any plans must be long-term, practical, and sustainable. For this reason, we propose that implementation of the duty would need to be phased, and that it could initially focus on the health, social care, and justice sectors.

We also envisage phased implementation for employees receiving training for the first time, with training undertaken in a staggered way over a period of perhaps three to five years. We also think that the training should be repeated thereafter at regular intervals, such as every three to five years.

The training programme

We currently think that the training programme could:

• Be a specifically Scottish training offer that takes an inclusive approach to neurodivergence, beyond autism and learning disabilities alone.
• Serve as the first step for public sector employees to build confidence in understanding needs and behaviours, and signpost employees to further training as appropriate.
• Encourage public sector employees to think, feel and behave positively toward neurodivergent people and people with learning disabilities.
• Provide employees with increased awareness and knowledge to support them in their role(s).
• Prepare employees to expect to support neurodivergent people and people with learning disabilities, including making reasonable adjustments.
• Be co-produced and co-delivered with people with lived experience.

There are clear boundaries to what this training can and cannot achieve:

• It will not replace specialist or professional-level training required for qualifications.
• It will not make participants neuro-affirming experts.
• It cannot guarantee changes in attitudes or behaviours for every employee.
• It should not remain static - it must evolve as practice and understanding develop.

We propose a tiered model:

• Tier 1: a core awareness-raising programme for as many employees as possible, including both public-facing and non-public-facing roles.
• Tier 2: a more detailed offer for employees in direct contact roles, service planning, and managerial positions, focusing on neuro-affirming practice.

We recognise expertise comes with experience over time and this proposed training could be the foundational starting point.

2.4: Improved data

Improved data collection and reporting are essential to understanding needs, identifying what works, better informing the design of policy and services, and building a stronger evidence base for change. Data will also be critical for evaluating and demonstrating the impact of the potential LDAN Bill over time.

Currently, neurodivergent people and people with learning disabilities are poorly represented in both quantitative and qualitative data. This lack of visibility has been highlighted repeatedly in reports addressing the needs and well-being of neurodivergent people and people with learning disabilities. Without robust data, awareness of people’s experiences and outcomes remains limited.

A key part of the solution is more accurate, detailed, and disaggregated data that can show variations in outcomes by condition, geography, age, and intersectionality. At present, national data collections (such as those on prison populations, employability support, social security, the Scottish Household Survey, and the Scottish Crime and Justice Survey) take inconsistent approaches to neurodivergent people and people with learning disabilities and do not provide the level of detail required.

A strategic approach to data collection and reporting could enable improved:

• evidence-based policymaking;
• identification of unmet needs and the scale of issues;
• service design and delivery;
• resource planning;
• monitoring and assessing outcomes; and,
• evaluation of the Bill’s implementation to ensure the right approaches are taken.

Improved data collection and reporting would therefore support an early intervention and prevention approach as well as more sustainable services.

The potential Bill aims to build on and complement existing initiatives to improve data collection, including:

• Scotland’s Health and Social Care Data Strategy;
• Public Health Scotland’s health and social care data collections;
• Annual health checks for people with learning disabilities; and,
• Public Health Scotland’s ‘Learning Disabilities and Complex Care Statistics Scotland Report’.

We are also taking into account the Equality Act 2010, which requires public authorities to publish relevant equalities data.

What could the Bill say and do?

We think that all existing national data collections could include disaggregated and condition-specific data for neurodivergent people and people with learning disabilities. We think that this data could be brought together into a single report. We do not think that legislation is required to make this happen for these particular data collections.

We also think that a new National Neurodivergence and Learning Disabilities Health and Social Care Statistical Report could be established for those conditions that will fall within the Bill’s reach, to help capture and highlight health and social care outcomes and experiences. Achieving this would require a new national approach to local health and social care data collection which the Bill could help to deliver.

We have heard concerns about the anonymity and use of data. All and any data collections and publications would be required to be anonymised and adhere to data protection legislation.

We currently think that there could be legislative provision within the Bill providing for:

• A regulation-making power setting out what data must be collected and reported by different public bodies.
• A duty on the Scottish Ministers to consult on those Regulations.
• A duty on Scottish Ministers to publish the information collected each year, in a report, with the ability to delegate this function to another public body, such as Public Health Scotland. And, for this report to be published in a way that is accessible to neurodivergent people and people with learning disabilities.

2.5: Independent advocacy

Independent advocacy can be a powerful tool to support individuals in understanding and realising their rights, making their voices heard, and ensuring that their views and wishes are considered in decisions that affect them. We want to ensure that neurodivergent people and people with learning disabilities have access to independent advocacy to support them in exercising their rights more broadly and communicating their needs where there may be challenges in doing so.

Consultation responses generally agreed with the aim of improving access to advocacy, with many highlighting that this could make an immediate and positive difference to people’s lives. However, many responses expressed disappointment that we did not propose a single broad right to advocacy.

In light of these views and further exploratory work, we are now considering whether the proposed LDAN Bill could ensure that a broad right of access to independent advocacy exists for everyone within the Bill’s reach.

The legislative landscape for advocacy in Scotland is complex. Several pieces of legislation require the provision of advocacy services or information about advocacy in some specific circumstances. The most relevant is the Mental Health (Care and Treatment) (Scotland) Act 2003 (‘the 2003 Act’) which provides for a right of access to advocacy for anyone who has a mental disorder, which includes people with learning disabilities and autistic people. We accept that the term mental disorder is seen by many as stigmatising and offensive. It is used here to accurately reflect the language of the 2003 Act. The right to advocacy under the 2003 Act is not diagnosis-dependent and is intended to function in a broad way so that those eligible could be able to access independent advocacy in any circumstances that are impacting on their care and welfare.

There are currently a range of legal rights to advocacy as well as advocacy services available to neurodivergent people and people with learning disabilities depending on their needs and the issues they require support for. Existing schemes include the Social Security advocacy service and the Support in the Right Direction programme that funds, amongst other things, advocacy in relation to self-directed support.

There are also recent developments such as the Care Reform (Scotland) Act 2025 which requires the Scottish Ministers to set out in regulations how independent advocacy services are to be provided for in relation to public social care services. In addition, the Children (Care, Care Experience and Services Planning) Bill currently progressing through Parliament intends to introduce rights of access, through secondary legislation, to independent advocacy support for care experienced persons.

We would need to ensure that any changes made by an LDAN Bill in relation to independent advocacy would contribute to coherence across the independent advocacy sector rather than add more complexity.

Consultation responses were clear that more sustainable funding and more trained advocates would be needed to enable fulfilment of any new right to advocacy, as people currently struggle to access advocacy support. We know from reports and reviews, such as The right to advocacy review by the Mental Welfare Commission for Scotland, that, currently, access to advocacy services under the 2003 Act may not always function as broadly as intended, because advocacy organisations are often asked to prioritise those who are receiving care and treatment or are being considered for care and treatment under mental health legislation.

Some consultation responses warned against introducing a new legal duty to provide information on advocacy services as they thought that, currently, the sector would not be able to manage increased demand without additional resources. As such, we believe that strengthening and extending the existing broad right of access to advocacy, along with making adequate funding available to implement this, is better suited to lead to improved provision of advocacy services rather than legislating for a duty to inform alone.

We therefore need to give careful consideration to the current landscape of available resources and trained advocates. Our approach to this question is set out in the accompanying Costs and Benefits Considerations document.

Improved access to, and provision of, independent advocacy would contribute to positive outcomes across a range of circumstances impacting on neurodivergent people and people with learning disabilities’ care and welfare. It could also improve inclusive communications and accessibility of health, social care, justice, and other supports and services.

What could the Bill say and do?

Currently, we want to ensure that a broad right of access to advocacy is available to everyone within the proposed Bill’s reach. We are giving careful thought as to how this could be given effect within the proposed Bill itself, as well as in practice, in a way that is implementable, effective and sustainable. In particular, we want to ensure that the work we are progressing on this is joined up with the broader ongoing work on independent advocacy provision across the Scottish Government, and is appropriately embedded within the existing complex landscape.

Giving effect to this proposal could include utilising the proposed Bill’s national strategy, local delivery plans and statutory guidance which could set out the details of a proposed funding model, standards, and approaches to data collection to inform improvements.

2.6: Enhanced accountability

We have listened to neurodivergent people, people with learning disabilities, and those who support them, as well as taking into account the available evidence on the inequalities and disadvantages that these populations experience. A consistent message has emerged: there must be stronger accountability across the public sector to ensure that services are delivered in a way that better upholds and respects rights and responds to real needs, and, to ensure that there is visibility and action taken when this does not happen.

Many neurodivergent people and people with learning disabilities agree that they often find it difficult to know what their rights are and how to properly access and exercise them. For many years, neurodivergent people and people with learning disabilities, their families and organisations that represent them have highlighted that responsibilities across public services can be unclear, progress difficult to monitor, and that lessons learned are not consistently translated into practice.

Campaigning for an LDAN Bill has from the outset primarily focussed on the need for enhanced accountability. The LDAN Bill’s proposals have therefore been developed with accountability central to its intended aims. Proposals in this paper aim to respond directly to those concerns by creating a clear and connected statutory structure through which national and local leadership, local action, data collection, consistent practice and transparent planning and reporting work together.

Each proposal within the Bill is designed to strengthen accountability by creating a joined-up and stable framework for driving improvements across multiple sectors. They enable a structure that supports a continuous cycle of planning, delivery, evaluation, reporting, improvement, lived experience input and points of oversight and scrutiny at regular intervals.

Importantly, these proposals would give commissioners, regulators, inspectorates, auditors, the Scottish Parliament, the Scottish Government and others clearer standards and evidence to inform their scrutiny and oversight work. By doing so, the proposed Bill would enable existing oversight bodies to operate more effectively and consistently for neurodivergent people and people with learning disabilities across Scotland and across sectors.

The potential LDAN Bill presents an opportunity to establish a statutory national strategy underpinned by legislation, giving it greater prominence. A published national strategy, together with local delivery plans and statutory guidance, could provide concrete actions against which scrutiny and oversight bodies can assess performance and promote good practice and change when duties or actions are not being met. It could therefore help drive stronger strategic national leadership as well as local leadership to support meaningful change.

A national strategy with complementary local delivery plans could also play a vital role in enhancing visibility and transparency. The national strategy could set out the outcomes, priorities and commitments that Scottish Ministers must pursue, which must also be laid before Parliament. By making national expectations public, and ensuring that they are refreshed and evaluated regularly, it is intended that oversight bodies would have a clearer understanding of what the overall system is aiming to achieve. They would be able to assess whether local and national actions align with these commitments and whether progress is being made at the expected pace. It could therefore provide greater transparency to scrutiny and oversight bodies, as well as society more generally.

Requiring every listed authority to publish a local delivery plan could create a direct line of accountability into local decision-making and delivery. Scrutiny and oversight bodies, as well as society more generally, would be able to see whether a plan exists; whether it reflects the national strategy; what actions are committed to; and, whether annual progress reports match the commitments made. This would make local delivery more visible, assessable and comparable.

Statutory guidance would describe what public bodies must do to implement the national strategy and to meet their duties under the Bill. It would therefore act as a clear reference point for oversight and scrutiny.

A broad right of access to independent advocacy could empower neurodivergent people and people with learning disabilities to hold public services to account, by helping to ensure that people know their rights, can participate fully and raise concerns effectively.

The proposed regulation-making power on data could provide oversight and scrutiny bodies with clearer and more consistent and comparable evidence. This could be used to identify areas in need of improvement; track progress over time; highlight inequalities; and support evidenced recommendations for improvement. With better evidence, public bodies can be held more effectively to account for their performance and progress.

Implementation of the proposed mandatory training duty would need to be capable of being monitored to ensure that the duty is being met. It is expected that progress would be reported on within the annual reports on the progress of local delivery plans.

Other options

The LDAN Bill consultation explored a range of additional options to strengthen accountability, including the possibility of establishing an LDAN Commissioner. Since then, the Scottish Parliament set up a cross-party Committee to review the landscape of Scottish Parliament Corporate Body (SPCB) Supported Bodies, which includes Commissioners. The Committee concluded its inquiry and published a report in June 2025, which included a recommendation that no new advocacy type Commissioners are established, and that in instances where new Commissioners are being considered, two-tier criteria must be satisfied. The Scottish Government committed to consider these recommendations in our response to the Committee’s report. During a Parliamentary debate in September 2025, Parliament agreed to the recommendations of a presumption against new advocacy type Commissioners.

Next steps

We will continue to explore other potential options for achieving enhanced accountability, drawing on the feedback received during the public consultation, the recommendations of the SPCB Supported Bodies Landscape Review Committee’s Report, and taking into account the views of the three Bill advisory panels that have supported us to refine our proposals so far.

2.7: Complex care and delayed discharge

We acknowledge that the term ‘complex care’ can be challenging for some people. We are using it because it is currently the most recognisable term for achieving a shared understanding as we progress thinking on an LDAN Bill. However, we acknowledge that definitions vary across services, and we have heard a number of suggestions for alternative language.

We know that some people with learning disabilities and neurodivergent people who have more complex care and support needs can spend a longer time in hospital than is medically necessary, often due to a lack of appropriate community support. This is called ‘delayed discharge’.

We also know that some people are living in areas away from where feels like ‘home’, their communities and families, even though they did not choose to. This is because community support is unavailable in the area where they would prefer to live. This is often called ‘living in an inappropriate out-of-area placement’.

The Scottish Government’s Coming Home Plan aims to significantly reduce delayed discharges and inappropriate out-of-area placements for adults with learning disabilities and complex care needs. Policy actions are based on the recommendations set out in the Coming Home Implementation Report (2022).

This made three key recommendations and said that the Scottish Government should:

• Introduce Dynamic Support Registers to improve planning, monitoring and visibility of those who are admitted to hospital and those in inappropriate out-of-area placements.
• Establish a National Support Panel to provide support and oversight of the Dynamic Support Register. The proposed purpose of the Panel would be to bring sector expertise together to provide an open and collaborative forum that can troubleshoot individual cases in partnership with local areas.
• Establish a National Peer Support Network to facilitate people coming together to learn and share best practice, and to get support when planning services for individuals with complex care needs.

To support local implementation, the Scottish Government also provided £20 million to Health and Social Care Partnerships through the Community Living Change Fund.

What has happened?

A National Practitioner Peer Support Network, run by Healthcare Improvement Scotland, was established in 2024 to enable practitioners to support each other and work together to improve local processes and case management.

The Dynamic Support Registers (DSR) were launched in 2023 on a non-statutory basis to improve case management, planning and decision making to help local areas identify people with learning disabilities and complex care needs. All integration authorities across Scotland are currently using the Register and quarterly data is published by Public Health Scotland in their Insights into Learning Disabilities and Complex Needs series.

The latest DSR quarterly data from September 2025 reported reductions in the number of people delayed in hospital, in hospital for over ten years, in inappropriate out of area placements and at risk of placement breakdown since the previous year. However, more progress is needed to fully deliver the Coming Home vision and mission.

In July 2025, the Scottish Government established a Coming Home Short Life Working Group to address outstanding recommendations within the Coming Home Implementation Report 2022 and identify further actions required to achieve the Coming Home vision and mission. It focused on action and improvement across seven key themes:

• Dynamic Support Register data;
• National Support Panel;
• Redesign of Learning Disability Inpatient Services;
• People in hospital for 10 years or more;
• Housing availability, suitability and sustainability;
• Skilling up and strengthening community services; and,
• Collaborative approach to commissioning services.

The Short Life Working Group has now submitted its Action Plan, which will be published soon.

What could the Bill say and do?

Dynamic Support Registers (DSRs)

Although the DSRs have already been implemented across Scotland on a voluntary basis, the completeness and quality of data remain variable. Making the recording of data on DSRs a statutory duty, supported by statutory guidance, could strengthen and improve consistency. Currently, guidance exists on a non-statutory basis, meaning compliance is voluntary, which may be a contributing factor to the variability and inconsistencies.

However, we recognise the risk that overly prescriptive statutory guidance could limit local innovation. To address this, national and local actions could alternatively be set out within the National Strategy and Local Delivery Plans (see section 2.2 above), allowing for more flexibility while maintaining increased accountability.

We are also currently exploring ways a potential LDAN Bill could make the implementation of the currently voluntarily administered Dynamic Support Register (DSR) a legal duty. This could support improved national data collection. The Coming Home Short Life Working Group has identified actions to improve the DSR data and its use, and there is potential to build this into future improvement work.

We are also considering a specific duty for local areas to act upon the data contained within its DSRs. For example, a legal duty to have regard to the local DSR when commissioning local services and the ability to demonstrate that they have done this. We think this could potentially help to assist with proactive planning for housing and other community services and improved accountability.

Overall, we think this proposal could help to address both improved local service provision and act as an additional form of transparency and accountability.

A National Support Panel

We are currently exploring how a National Support Panel could be established and whether this would require legislation. Key considerations include:

• Purpose and added value: what would the Panel do differently from the existing Peer Support Network?
• Legislative requirements: what legal provisions might be necessary for the Panel to fulfil its intended role?
• Justification: why is a new and specific mechanism needed beyond existing accountability structures, such as Healthcare Improvement Scotland, the Care Inspectorate, and the Mental Welfare Commission for Scotland?

This work is being progressed through the Coming Home Short Life Working Group, which has considered how the potential functions and operation of the Panel can be tested. The outcome of this work will be used to inform whether and how the LDAN Bill could include provisions for a Panel.

2.8: Justice

Neurodivergent people may come into contact with the justice system at various points as victims, witnesses, or offenders. Evidence shows that neurodivergent people and people with learning disabilities are overrepresented in the justice system. In particular, Scottish prisons have disproportionately high numbers of neurodivergent people: over 30% of the prison population is estimated to be neurodivergent compared to an estimated 15% representation in the general population.

The LDAN Bill consultation set out a range of potential options for reform to the justice system. Since then, we have engaged regularly with a range of stakeholders, including the three Bill Advisory Panels, to discuss and refine these proposals.

The LDAN Bill proposals, alongside complementary work, could aim to improve rights and supports for neurodivergent people and people with learning disabilities when involved with the Scottish legal system by:

• Supporting people by ensuring they feel safe to come forward and receive appropriate support.
• Improving awareness and understanding in the justice system of needs and behaviours among accused persons and offenders, supported by mandatory training and improved identification processes.
• Increasing access to advocacy and support: helping people to better navigate the justice system and exercise their rights.
• Reducing offending and re-offending: by providing more effective supports and services to neurodivergent offenders and offenders with learning disabilities.

What could the Bill say and do?

The potential Bill could introduce a new statutory duty on relevant public bodies within the justice system to identify people with a communication support need that may arise as a result of a neurodivergence or a learning disability. This could enable those individuals to receive the support they need to understand and participate fully in justice processes.

It is intended that this duty could be placed on relevant public bodies, requiring that reasonable steps be taken to identify a communication support need that may be as a result of neurodivergence or learning disabilities. The Bill could define what is meant by a communication support need in this context. For example, this could potentially say any person whose ability to understand and communicate is different due to a neurodevelopmental need or learning disability.

It is not the intention that this proposed duty would create any requirement for justice organisations to medically assess or diagnose neurodivergent conditions or learning disabilities. Assessment and diagnosis would remain the role of health and social care professionals through assessment and diagnosis pathways.

We understand that where a neurodivergent person or person with a learning disability enters the justice system they may choose not to disclose this, or may not wish to be formally diagnosed. Therefore, in carrying out this new duty, no decision would be required on what condition or conditions a person may have, rather, it would be an assessment of whether their behaviour or communications indicate a neurodevelopmental need for additional support to enable them to fully understand and participate.

To enable justice bodies to meet this duty the justice sector could be prioritised for mandatory training under the Bill.

Complementary work includes development of a framework to support justice employees. There are also various databases, systems and records that could support the recording and sharing of relevant information.