Adults with incapacity amendments Act - consultation response by SASW
Adults with Incapacity (Scotland) Act 2017 Consultation on Proposed Amendments. Response by SASW on behalf of the members of the Social Work Profession.
The Scott Review and the central importance of human rights led to this consultation. It proposes several radical changes to ensure that human rights protections are an integral part of all legislation relating to deprivation of liberty within the Law.
SASW members, particularly MHOs, welcomed the consultation and helped us to craft our response. They told us that in many cases what was being proposed is good practice, where circumstances and resources permit it. This is a complex area of practice and requires clarity both of thought and purpose if it is to be a meaningful and beneficial to all concerned. As such there was a clear message from our members that the changes to policy and the law must be effective, and to do so there will need to be: scrutiny over implementation; the changes should be implemented cautiously to manage unintended consequences; any future consultation should allow for a longer response period to address the complications in legislation
Our members told us that they expect a financial and staffing impact on existing services because of what is being proposed. Without additional resources some of these changes risk adding an additional burden to services that are struggling to deliver their statutory responsibilities. The levels of change proposed all have implications both to process and staffing levels. This applies to Power of Attorney; Deprivation of Liberty in all situations; powers of doctors to treat; the existing processes recently underway for Supported Decision Making; the changes to the Office of the Public Guardian and the additional requirements upon Local Authorities. These not insignificant adjustments will have an impact on social work services, particularly mental health and hospital admissions/treatment under section 47 of the Adults With Incapacity Act. There is also a paradoxical risk that a failure to resource the changes could reduce rather than increase the rights of people affected by the legislation.
Our members were also concerned about proposals to speed up the legal processes by changing who can agree that a capacity issue exists. How this impacts on the on the people we support is of real concern. The current legal processes, whilst being limited and hindered by the availability of qualified practitioners, does already provide a considerable degree of safeguarding. Our members felt that the answer is not to reduce the rights of persons by lessening the level of, for example, legal safeguards to Power of Attorney, or Guardianship processes, but to increase the number of specialist professionals involved. Not to reduce the levels of supervision and accountability in, for example, deciding who has capacity to appoint a POA, but by making sure that legal aid is available for the process of installing a Power of Attorney. Otherwise, the stated principles that already exist are not protected and the intention of the changes will not be realised.
In short, whilst it is important to take the Scott Review forward for both The Mental Health Act and the Adults with Incapacity Act, it is equally important that any changes made are properly structured and transparently financed. Both Acts are recognised internationally as being good examples of how good mental health legislation and protection should be done. Both also have very strong principles that, when applied properly are effective in ensuring that time can be taken to get changes and resource allocation/finance set up. Getting this right is crucial for our members, who are the people who will implement these changes and/or supervise/manage others who must do so.
Response collated and coordinated by Paul Jewitt, consultant MHO and member of the SASW National Standing Committee
Questions and Answers
1: Do you agree that the principles of the AWI Act should be updated to require all practical steps to ascertain the will and preferences of the Adult before any action is taken under the AWI Act?
Answer. Yes. The existing principles of the Act also require updating. The Act also should reflect the learning from changes to Supported Decision Making . Generally, this is welcomed as there will be benefit in clarity.
2. Do you agree that in the AWI Act we should talk about finding out what that Adults will and preferences are instead of their wishes and feelings.?
Answer. Our members explored this in detail and the consensus is that this wording is better suited to the intention of the Act. However, this approach has always been central to practitioner training as it is action orientated.
3. Do you agree that any intervention under the AWI Act should be in accordance with the adult’s rights, will and preferences unless not to do so would be impossible in reality?
Answer. Our members are keen to emphasise that intervention MUST be in accordance with the adult’s rights and not harmful to their interests. A resource limitation alone should not be a reason for rights, will and preferences to be overridden.
4.Do you agree that the principles should be amended to provide that all support to enable a person to make their own decisions should be given and shown to be unsuccessful before interventions can be made under the AWI Act?
Answer: Yes. Person led decision making, and where that is not possible, shared decision making should be the norm.
5. Do you agree that these principles should have precedence over the rest of the Principles in the AWI Act?
Answer. No. The existing Principles are central to any actions within the remit of the Act.
6. Do you have any suggestions for additional steps that could be put in place to ensure the principles of the Act are followed in relation to any intervention under the Act?
Answer. Yes. Mental Health Officers (MHO) should have a statutory role in all AWI case conferences. They are independent and have an advisory function as well as being charged with safeguarding the persons rights.
7.Do you agree with the change of name for Attorneys with Financial Authority only?
Answer. Yes. Clarity is helpful here so that there is no misunderstanding of what powers are held.
8. Do you agree with our proposals to extend the power of direction of the Sheriff?
Answer. Yes
9. Do you agree with our proposal to amend the powers of investigation of the OPG to enable, where appropriate, an investigation to be continued after the death of the Adult?
Answer. Yes
10/11/12 Do you agree that the investigatory responsibility between the OPG and Local Authority should be split in the manner outlined above? Pages 18-21 of the consultation document. Will this provide greater clarity on the investigatory functions of both? Will this new structure improve the reporting of concerns?
Answer. No
Investigation at this level requires both a specific set of skills and independence. The Office of the Public Guardian needs to have its remit and service expanded to deal with these new, and specialist, tasks. Local Authorities, social care and social work are struggling to cope with the existing frameworks and caseload. There is a palpable risk if this additional burden on Local Authorities is not properly resourced.
The Office of the Public Guardian should empower the Police and Local Authorities to report concerns and to provide assistance, supported by information sharing protocols. One agency taking responsibility will provide clarity and empower the others to report concerns.
13. Do you agree with the proposals for Training for Attorneys?
Answer. Yes. in principle, as it would offer protection to both the Adult and the Attorney. However, SASW members are concerned about who will have this responsibility, particularly as Local Authorities or Integrated Joint Boards have limited, and reducing, resources.
14. Do you agree that the OPG should be given Power to call for Capacity evidence and defer registration of POA where there is dispute about the possible competency of the POA document?
Answer. A qualified yes. Evidence calls should also anticipate resolving trivial disputes.
15. Do you agree that the OPG should be able to request further information on Capacity evidence to satisfy themselves that the revocation process has been properly met?
Answer. Yes
16. Do you agree that the OPG Should be given the power to determine whether they need to supervise an attorney, give directions to or suspend an Attorney on cause shown after an investigation rather than needing a Court Order?
Yes, if it retains that responsibility throughout the process.
17. Should we extend the class of persons who can certify the Granter’s capacity in a POA ?
Answer. Yes, in principle. However, capacity is a difficult concept to assess. It requires several specialist skills as well as accountability at a significant professional and legal level. Expediency must not over-ride a person’s safety or their rights.
18. Do you agree that a paralegal should be able to certify a granter’s capacity in a POA?
Answer. No.
19. Do you agree that a Clinical Psychologist should be able to certify a Granter’s Capacity in a Power of Attorney?
Answer. Yes, if they have the specialist skills.
20. Which other professionals can certify a granter’s Capacity in a POA?
Answer. At present solicitors and doctors. Their training, competence and accountability should be monitored and reported. In some cases independent or out of area MHO’s can certify because of their training, competence in this area and their professional accountability.
21. Do you agree that Attorneys, interveners and withdrawers should have to comply with an Order or demand made by the OPG in relation to property and financial affairs in the same way as guardians?
Answer. Yes. This provides a parity of protection.
22. Do you agree that the OPG should have broader powers to suspend powers granted to a proxy under the AWI Act whilst an investigation is undertaken into property and financial affairs?
Answer. Yes. This also provides a parity of protection and is in the best interests of all involved.
23. Do you agree that the MWC and Local Authority should have broader powers to suspend powers granted to a proxy under the AWI Act whilst an investigation is undertaken into Welfare affairs?
Answer. No. The powers should lie with the MWC and the OPG. However, it may be appropriate if the LA needs to make an application to a Sheriff Court to enable rapid action in preparation for the OPG to begin their investigation.
24. Do you agree that the powers and specific amounts should be decoupled?
Answer. Yes, as long as the purpose is to simplify access to funds.
25. Do you agree that the withdrawal certificate should contain standard proforma powers for the Withdrawer to use?
Answer. Yes
26. Do you agree that access should be given to the Adult’s current account rather than setting up a ‘designated account’?
Answer. Yes
27. Do you agree that in certain circumstances, applications where there is a Guardian, or Intervener with powers relating to Funds in question should be allowed?
Answer. Yes
28. Do you agree we should clarify that a bar to applying under this section only applies if someone is already authorised under part 3 of the Act to intromit with the same funds?
Answer. Yes
29. Does having an account in the Adult’s sole name limit organisational use of the scheme?
Answer. Yes. Consensus among our members is that the complexity around accessing funds would benefit from a national approach and standards, possibly through a separate agency.
Should we add the same Transition provisions to Intervention Orders as there are for
Guardianships?
Answer. Yes
31. Do you agree that sheriff’s under certain circumstances should be able to grant powers to access funds under this proposal?
Answer. Yes
32. Do you agree that authorised establishments should be able to apply under the ATF scheme?
Answer. Yes
33. Do you agree that we should split intimation of the application between organisations and lay people (OPG).
Answer. Yes
34. Do you support the proposal to remove part 4 from the AWI Act?
Yes. Part 4’s complexity and difficulties in accessing those powers has meant other parts of the Act have been preferred.
35. Do you think alternative mechanisms like the ATF scheme, guardianships and intervention orders adequately address the financial needs of Adults with incapacity living in residential Care settings and Hospitals?
Answer. Yes and no. Any alternative mechanisms would benefit from national approach and standards overseen by an independent agency.
Part 5 Authority to medically Treat Adults with incapacity.
36. Do you agree that the existing section 47 certificate should be adapted to allow for the removal of an adult to hospital for the treatment of a physical illness or diagnostic test where they appear to be able to consent to admission?
Answer. Possibly, provided the medical professional concerned has been properly trained in AWI matters and is aware of the other options available so that this can be seen as the least restrictive alternative.
37. Do you consider anyone other than GP’s Community Nurses and Paramedics being able to authorise a person to be conveyed to hospital? If so who?
Answer. No.
38. Do you agree that if the Adult contests their stay after arriving in hospital that they should be assisted to Appeal this?
Answer. Yes The process and the responsible officer must be made clear from the beginning.
39. Who would be responsible for assisting the Adult in Appealing this in Hospital?
Answer. It should be standard procedure that this should be a social worker and an independent advocate
40. Do you agree that the lead medical professional responsible for authorising the s47 certificate can then also authorise measures to prevent the Adult from Leaving hospital?
Answer. The justification for this action must be made clear to warrant a deprivation of liberty. Two medical practitioners have to agree this action is justified to guarantee objectivity. Only in an emergency, and when no other medic is available, should one practitioner be able to authorise this deprivation of liberty. That decision has to be reviewed regularly until the second medic can review and then agree there is a continuing need.
41. Do you think the certificate should provide for an end date which allows an Adult to leave the hospital after treatment for a physical illness has ended?
Answer. Yes. It should also be reviewed under strict guidelines that make the certificate a part of governance and therefore evidential.
42. Do you think that there should be a second medical practitioner……… ?
Answer. Yes. This is an essential safeguard.
43. If yes should they only be involved if relevant others such as family, guardian or attorney dispute the placement in hospital?
Answer. No. This should be routine, rights based and, in any case, could result in an MHO assessment to consider other measures.
44. Do you agree that there should be a review process after 28 days to ensure that the patient still needs to be made subject to the restriction measures under the new provisions?
Answer. No. It should not be left as long as that. If that length of detention is needed, then other means of keeping the adult safe and protecting their rights are available. It should be reviewed with the first 8 hours after admission and re-assessed.
45. Do you agree that the lead clinician can only authorise renewal after review up to a maximum of 3 months before a Sheriff’s Court needs to be involved in review of the detention?
Answer. 3 reviews are more appropriate. It should be mandatory that those reviews consider the alternatives to deprivation of liberty so that this option is properly policed. A tribunal rather than the Sheriff’s court is a better place to hold these deliberations.
46. What sort of support should be provided to enable the Adult to appeal treatment and restriction measures?
Answer. A second medical opinion, independent advocacy and both a social worker and/or an MHO.
47. Do you agree that section 50(7) should be amended to allow treatment to alleviate serious suffering on the part of the patient?
Answer. Yes. However, the standard safeguards need to be in place (second medical opinion, independent advocacy and both a social worker and/or an MHO.
48. Would this provide clarity in the legislation for medical practitioners?
Answer. Yes, if safeguards are in place.
Part 6 Guardianships
49. Do you think that the requirement for medical reports for Guardianship should change to a single medical report?
Answer. Only if that report was detailed and compiled by a specialist doctor or psychologist.
50. Do you agree with our suggestion that clinical psychologists should be added to the category of professionals who can provide these reports (where the incapacity arises by reason of mental disorder)?
Answer. Yes
51. Do you think that the Mental Health Officer form for Guardianships can be improved to make it more concise whilst retaining the same information?
Answer. It may be possible. However, the purpose of the form is to examine the rights of the adult in detail as well as to look at the powers sought, ensuring that any powers granted are appropriate and in the best interests of the Adult. Whilst it could be simplified it should not be an immediate requirement.
52. Do you think the ‘person with sufficient knowledge’ form can be improved making it more concise whilst retaining the same information?
Answer. Yes
53. Should the person with sufficient knowledge continue to be the person who prepares the report for financial and property Guardianship?
Answer. Yes but there needs to be clarity about the qualifications for this role, because it requires evidential knowledge of the subject, that is legal and financial expertise
54. Do you agree with our proposal to replace the second part of PWSK report with a statutory requirement to complete the OPG Guardian declaration form?
Answer. No. This would be an unnecessary complication and may distract from the immediate need.
55. Should Sheriff’s be afforded the same discretion with the MHO report timings as they are with medical reports?
Answer. No. 30 days is there to ensure thoroughness, making sure the adults rights and best interests are properly served.
56. Do you agree that the best approach to cater for urgent situations is to amend the existing interim guardianships?
Answer. No. The criteria need to be clarified before any changes are made.
57. Do you agree that an abbreviated MHO report together with a single medical report should suffice for a guardianship order to be accepted by the Court?
Answer. No. This would risk undermining the requirement to meet the law review standards.
58. Do you agree that there should be a short statutory timescale for the court to consider urgent interim applications of this sort?
Answer. No. This will also risk undermining relevant standards.
59. Do you agree that further medical Reports are not required when varying a Guardian ship to add either welfare or Financial powers?
Answer. Yes, since the reason has already been established.
60. Does the current approach to length of Guardianship orders provide sufficient safeguards for the Adult?
Answer. Yes. The current approach has been shown to work with the necessary safeguards.
61. Do changes need to be made to ensure an appropriate level of scrutiny for each Guardianship order?
Answer. No
62. Is there a need to remove discretion from the Sheriff to grant indefinite Guardianships?
Answer. No
63. If you consider changes are necessary what do you suggest they would be?
Answer. Consensus from our members is that a Sheriff Court is an intimidating environment for many adults and their families. A tribunal process instead of the court is preferred by our members and would enable the adult and others to better participate in the process.
64. see page 60 of the consultation for the list of exclusions of powers.
65. is do you think there are any other exclusions needed?
Part 7 Deprivation of Liberty (Dol).
66. Do you agree with the overall approach we are proposing to address Dol?
Answer. No. A DoL and its relationship to existing legislation needs to be clearly defined before we can consider making changes.
67. Is there a need to consider additional safeguards for restrictions of Liberty that fall short of DOL?
Answer. Not until the relationship to existing legislation and safeguards is explored.
68. Do you agree with the proposal to have prescribed wording to enable a POA to grant advance consent to a Dol?
Answer. No. Currently there is conflict with the human rights of the adult and the definition of least restrictive option.
69. What are your views on the issues we consider need to be included in the advanced consent?
Answer. The need for a definition that meets the requirements is paramount.
70. What else could be done to improve the accessibility of Appeals?
As described above, a Sheriff Court is an intimidating environment for many adults and their families. A tribunal process instead of the court is preferred by our members.
71. What support should be given to an adult to raise an appeal?
Answer. This is difficult to answer as there are too many interacting factors that might have an impact.
72. What views do you have on rights to appeal?
Answer. There should always be a right to appeal against any imposed Dol. The context and method for that appeal is not resolved in this proposal.
73. How can Dol’s authorised by a POA be appropriately reviewed?
Answer. The existing review system for Guardianships under care management should still apply.
Guardianships
74. Do you agree with the proposal to set out the position on Dol and Guardianships in the AWI Act?
Answer. Yes. It is a necessity by definition.
75. In particular what are your views on the proposed Timescales?
Answer. No expressed views.
76. What are your views on the proposed right of appeal?
Answer. General agreement that it should exist in principle.
77. What else could be done to improve the accessibility of appeals?
Answer. As previously noted, the use of a Tribunal setting would likely increase usage.
78. Do you agree with the proposal to have 6 monthly reviews of the placement by the Local Authority?
Answer. This is existing good practice.
79. Is there anything else we should consider by way of review?
Answer. No
80. Do you agree with our proposal for a stand-alone right of appeal for a Dol?
Answer. Yes, but only if the resources to support this approach are made available.
Role of the MWC
81. Do you agree with our proposal to give the MWC a right to investigate Dol Placements when a concern is raised with them?
Answer. Yes.
82. Do you agree with the proposals to regulate the appointment, training and remuneration of Safeguarders in AWI cases?
Answer. Yes.
83. Do you agree with the proposals for training and reporting duties for Curators?
Answer. Yes.
84. What suggestions do you have for additional support for adults with incapacity in AWI cases to improve accessibility?
Answer. The process should be actively inclusive and be as informal as possible to facilitate good conversations and engagement.
85. Do you think there should be a specific criminal offence relating to financial abuse of an adult lacking capacity?
Answer. Yes.
86. I so should the penalty be the same as for the Welfare offence?
Answer Yes
87. Do you have experience of adults lacking Capacity being supported in Hospital despite being deemed no longer in need of Hospital care and Treatment. What issues have arisen from this?
Answer. Yes. Bed-blocking is consistently blamed on social work and social care without justification. A progressive reduction in funding for social work and social care over a number of years has reduced resource provision and staffing levels
Means that often there is nowhere to move people on to that will meet care standard or protect the dignity and rights of the people we support. This inevitably leads to institutionalisation and dependency for some adults and makes finding a suitable placement challenging.
88. Do you foresee any difficulties or Challenges with using Care settings for those who have been determined to no longer need hospital care and treatment?
Answer. The only solution is proper funding for placements and, in many cases, early help that provides packages of care to keep people in their own communities.
89. Are there any safeguards we should consider to
ensure that the interests and rights of the patients are protected?
Answer. Care needs to be properly and fully funded with a focus on protecting and maintaining people’s human rights and dignity.
90. What issues should we consider when contemplating moving patients from an acute NHS setting to a community-based care setting such as a care home?
Answer. Availability of a suitable placement.
Part 8 considers issues regarding participation in research and is outwith the remit of the acts we were asked to consider.