Adults with Incapacity Amendment Act: consultation

Part 1: Principles of the Legislation

Section 1(6) of the AWI Act defines a person over 16 as ‘incapable’ if they are incapable of:

• acting; or
• making decisions; or
• communicating decisions; or
• understanding decisions; or
• retaining the memory of decisions,

by reason of mental disorder or an inability to communicate due to a physical disability that cannot be improved by an external aid.

Furthermore, incapacity is not always permanent and the nature of an individual’s incapacity can be dependent on the condition or illness they are experiencing. The reasons for incapacity can be incredibly varied, and may include conditions like dementia, severe trauma caused by accidents that render individuals unconscious, learning difficulties, mental states such as delirium, amongst many others. Incapacity can also be temporarily caused by a particular treatment regime received by an individual (e.g. patients being placed in medically induced comas).

The AWI Act is governed by principles set out in section 1 of the Act. Anyone taking action under the AWI Act has a legal duty to follow the principles.

The principles can be summarised as follows

• No one should intervene under the AWI Act unless they are satisfied that the action will benefit the adult. They should also be satisfied that this benefit cannot reasonably be achieved without the intervention
• Any action taken should be the minimum necessary to achieve that purpose.
• Anyone determining whether to intervene, and what intervention to make, should take account of the past and present wishes and feelings of the adult.
• The views of certain significant others in the adult’s life need to be taken into account
• Any guardian, attorney or manager of an establishment should encourage the adult to exercise whatever skills they have and to develop new skills, as far as this is reasonable and practicable.

These principles all have parity. No single principle is more important than another and together they should ensure that all actions taken under the AWI Act stem from the needs of the adult. Everyone acting under the AWI Act must be able to justify their actions in accordance with the principles of the Act.

Since the AWI Act came into force, the principles have been considered to represent good practice and are generally well accepted. However, there is concern that, considering the ratification of the UNCRPD by the UK, the principles do not go far enough to ensure the rights of disabled people are upheld.

This was highlighted in the final report of the SMHLR. The report recognised that if the complete agenda for legislative reform was adopted by the Scottish Government, it would take several years to develop, but that more urgent reforms were needed to the AWI Act.

Key to these changes was an updating of the AWI principles within the AWI Act, to place a greater emphasis on respecting the will and preferences of adults affected by the legislation. Chapter 13 of the final SMHLR report drew on the recommendations of the Three Jurisdictions report ^[7] as highlighted by the Law Society of Scotland.

The Three Jurisdictions report aimed to recommend steps that might be taken by Scotland, England, Wales and Northern Ireland to bring their capacity law regimes closer to achieving compliance with the UNCRPD and ensure respect for the rights of disabled people.

Central to this is consideration of article 12 of the UNCRPD which states:

Article 12 – Equal recognition before the law

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

The requirements of article 12 of UNCRPD mean that respect for the full range of the rights, will and preferences of everyone should lie at the heart of legal regimes. To move towards this, the recommendation of the SMHLR was that the principles of the AWI Act should be amended in line with the recommendations of the Three Jurisdictions Report to give greater priority to the will and preferences of the adult.

When we talk about rights, will and preferences we mean a person’s longstanding values beliefs and goals, along with shorter term preferences for one choice over another. We think that this term should be used in legislation instead of wishes and feelings as it is used in the UNCRPD, and reflects more accurately the need to reflect both long and short term choices of the adult.

The SMHLR concluded that we should follow the recommendations of the Three Jurisdictions report. The Three Jurisdictions Report said

‘[there should be a] rebuttable presumption that effect should be given to the person’s reasonably ascertainable will and preferences... Action which contravenes the person’s known will and preferences should only be permissible if it is shown to be a necessary and proportional means of effectively protecting the full range of the person’s rights, freedoms and interests’.^[8]

We agree with this. At present section 1(4)(a) of the AWI Act requires the past and present wishes and feelings of the adult, so far as they can be ascertained , to be taken account of in determining if an intervention should be made, and what such an intervention should be. However this is on an equal footing with the requirement to take account of the views of the nearest relative, guardian, attorney, named person or any other person who might have an interest in the welfare of the adult, or the proposed intervention.

We think this needs to change. We think that to ensure priority is given to an adult’s will and preferences, before any steps are taken to intervene in an adult’s life, all practicable steps should be taken to ascertain their will and preferences, and thereafter, any intervention under the AWI Act must be in accordance with the adult’s rights, will and preferences.

The exception to this would be if it can be shown that not to follow an adult’s will and preferences would be a proportional and necessary means of effectively protecting the full range of the person’s rights, freedoms and interests, then steps can be taken.

There will also be circumstances where it is simply not possible to give effect to a person’s will and preferences, such as for example an adult wishing to live with their sibling, but the sibling’s accommodation is not viable or safe for the adult to live there. In such cases, the expectation would be for time to be spent with the adult to devise an acceptable alternative.

Support for decision making

In addition to this change, we think that there needs to be a greater emphasis on support given to an adult to enable them to make their own decisions, before any steps are taken to intervene in the adult’s life.

Generally, capacity laws are based on whether a person has the capacity to make decisions or not. The law in Scotland presumes that adults are capable of making personal decisions for themselves and managing their own affairs. When assessing capacity, evidence of the adult’s ability to understand any potential risks, and a consistency in this understanding, is considered.

The UNCRPD has spurred us to consider how states might respond differently to disability rights. Central to this is Article 12 which asserts the right of disabled people to equal recognition before the law and requires that states take appropriate measures to provide people with disabilities with the support they require to exercise their legal capacity.

The SMHLR stated that the current framework in mental health and incapacity law in Scotland focuses mainly on protecting individuals with mental disorder from unnecessary intrusions in their life. The final report said that this needs to change and a fundamental part of that change is the development of a comprehensive regime of supported decision making which should apply in all situations. Individuals affected by mental health and capacity law have the same rights as anyone else to make decisions about their lives. And any support required to enable them to do so should be provided.

A priority of the Scottish Government Mental Health and Capacity Reform Programme is to help people voice their opinions through supported decision-making practices. The programme is committed to reviewing existing practices, working with partners to assess effective Supported Decision Making practices. From this baseline decisions will be made on the necessary next steps.

We consider that this shift in approach needs to be fully embedded in the AWI Act. We have been looking at other jurisdictions for examples of good practice.

The Mental Capacity Act (Northern Ireland) 2016 has been praised for its approach. It provides in its principles that:

‘the person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make decisions about the matter have been given without success.’^[9]

We think that a similar condition should be applied to actions under the AWI Act to ensure that interventions only take place when options for supported decision making have been exhausted.

We suggest that the principles should be amended to provide that prior to any intervention in the affairs of an adult, all practicable help and support to enable the adult to make their own decisions about matters should have been given and shown to have been given without success.

These principles should have priority over all other principles of the AWI Act to ensure that supporting the adult to make decisions, and ascertaining the will and preference of the adult and following those is the priority in considering any intervention in an adult’s life. And that not respecting the will and preference is only possible in specified circumstances.

These changes should ensure that the wishes and feelings of the adult, now referred to as will and preferences, are always front and centre of actions under the AWI Act.

However, in order to ensure that there is a consistent approach across the country on the provision of support for adults, and the methods to be used in obtaining the views of incapable adults, there will require to be a comprehensive training scheme for practitioners, and guidance contained in codes of practice.

In addition, guidance, training and support will be required for family members and others who take on the roles of attorneys and guardians.

Over the summer we will be undertaking work to establish a baseline for supported decision making across Scotland at present and we will use this to draft a model for training and support, in conjunction with people who have experience in this area, be it as users of the legislation, carers of those who come within the legislation or practitioners.

How can we ensure the principles are followed?

The principles will only have effect if they are followed by everyone who uses the AWI Act.

At present, training for practitioners points out the need to follow the principles, as does the codes of practice^[10]. Sheriffs are expected to consider how the principles have been followed when considering what decisions should be made in respect of the adult. The Office of the Public Guardian (OPG) will ask financial guardians if they have been following the principles and practitioners are expected to reflect in their reports how the principles have been adhered to.

Going forward, with the proposed change in the principles, the requirement to provide support for the adult to make their own decisions before considering an intervention, and the requirement to ascertain and follow an adult’s will and preferences will mean that there will be an obligation on anyone seeking an intervention under the AWI Act to show how they have adhered to these, as well as the existing principles.

We intend for this to be set out in training. In addition, reports that may require to be prepared for interventions such as guardianship, will require to set out the steps the writer of the report has taken to ensure the principles have been followed. More detail on this is provided in later chapters in this consultation.

It may be considered however that more steps are needed to ensure the principles are followed, and we would be grateful for views as to what additional steps could be put in place to make certain the principles of the AWI Act are followed by any person acting under legislation in accordance with section 1 of the AWI Act.

Questions

1. Do you agree that the principles of the AWI Act should be updated to require all practicable steps to be taken to ascertain the will and preferences of the adult before any action is taken under the AWI Act?

2. Do you agree that in the AWI Act we should talk about finding out what that adult’s will and preferences are instead of their wishes and feelings ?

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?

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 have been unsuccessful, before interventions can be made under the AWI Act?

5. Do you agree that these principles should have precedence over the rest of the principles in the AWI Act?

6. Do you have any suggestions for additional steps that could be put in place to ensure the principles of the AWI Act are followed in relation to any intervention under the Act?

Proposed Terminology changes

Throughout the AWI Act distinction is made between an adult’s property and financial affairs and an adult’s personal welfare (including healthcare matters). However, the way this distinction is made is different for powers of attorney and guardianship orders.

Under Part 2 of the AWI Act, a power of attorney that relates only to financial matters is known as a “continuing attorney”. This causes confusion and requires repeated explanation to members of the public.

Under Part 6 of the AWI Act a guardianship order can be granted for the protection of the property, financial affairs or personal welfare of the adult.

We consider that there should be easily understood descriptors of the role an attorney or guardian holds. We think these should be the same for both roles.

We recommend changing the term ‘continuing attorney’ to ‘financial attorney’.

A guardian should continue to be known as a guardian with financial, property and / or welfare powers depending on the authority granted to them by the sheriff.

Questions

7. Do you agree with the change of name for attorneys with financial authority only? Please add any comments you have around this.

Sheriff’s power of directions

Section 3(3) of the AWI Act currently provides for the sheriff, on application by any person claiming an interest in the property, financial affairs or personal welfare of an adult to give directions to any person exercising functions conferred by the AWI Act or functions of a like nature conferred by the law of any country.

This is an incredibly useful power, but we consider it needs expanding in two ways.

First we think that the sheriff should be able to give directions to people formerly exercising functions, so that a former attorney or guardian for example could be ordered to provide information. This will ensure greater transparency between individuals currently and formerly exercising functions under the AWI Act and will provide further protection for the adult.

Second, we think that the power under section 3(3) should be extended to a discretionary power to give directions to anyone where that is appropriate for the proper operation of provisions of the AWI Act.

This would provide a route for attorneys and guardians to, for example, request the sheriff to direct a pension provider to transfer payments into an appropriate account. The inability to do something like this at present can cause a great deal of distress for persons acting under the AWI Act and can often mean the adult is not receiving the funds they should.

Authority of the Public Guardian

Section 6(2)(c) of the AWI Act gives the OPG the authority to receive and investigate any complaints regarding the exercise of functions relating to the property or financial affairs of an adult made in relation to continuing (financial) attorneys, intromissions with funds, guardians or persons authorised under intervention orders.

However, the OPG is not allowed to investigate any matters or concerns in relation to a deceased adult. The AWI Act currently only provides official status for the OPG to ensure the estate of an adult with incapacity is protected for the benefit of the adult. The OPG has said that a discretionary power to continue investigations after the adult has died would be very useful. This would minimise the risk of misappropriation of funds in an adult’s estate. There is also the consideration of other adults who may be at risk if the OPG is not permitted to continue an investigation after the death of the adult.

We agree with the views of the OPG and propose that section 6(2)(c) be amended to enable an investigation carried out by the OPG, if appropriate, to be continued after the death of the adult, so long as the investigation has started before the adult died.

Questions

8. Do you agree with our proposals to extend the power of direction of the sheriff?

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?

Investigations into cases under the AWI Act

How the process for AWI cases currently works

Presently OPG investigate financial concerns where the adult lacks capacity. This can be where the adult is subject to provisions of the AWI Act, such as where a continuing (financial) power of attorney, a guardianship or intervention order with property and/or financial powers, or authorisation to access funds under Part 3 are in place. OPG can also investigate where the adult lacks capacity and there are no provisions under the AWI Act in place.

The local authority has a duty to investigate cases under the AWI Act if there is a risk to the personal welfare of an adult^[11]. The local authority also has a duty in the AWI Act to consult the OPG and the Mental Welfare Commission (MWC) on cases where there appears to be a common interest^[12] .

The local authority also has a duty to make inquiries under the Adult Support and Protection (Scotland) Act 2007 (ASP Act)^[13]. This is if it knows or believes that the person is an adult at risk, and that it might need to intervene in order to protect the person's well-being, property or financial affairs. An adult at risk in this case can include an adult lacking capacity as well as an adult with capacity but who is otherwise vulnerable as described in section 3 of the ASP Act^[14].

Section 3 (1) of the ASP Act defines an ‘adult at risk’ as someone who meets all of the following three criteria (commonly known as the three-point test):

• That they are unable to safeguard their own well-being, property, rights or other interests.
• That they are at risk of harm; and
• That because they are affected by disability , mental disorder, illness or physical or mental infirmity they are more vulnerable to being harmed than adults who are not so affected.

The three criteria above make no specific reference to capacity, although a lack of capacity is a factor in the third criteria.

The ASP Act places a duty on the MWC, the OPG, local authorities, the Police and other bodies to make a referral and co-operate with each other if they know or believe that a person is an adult at risk of harm and that action needs to be taken to protect them from harm^[15].

The OPG, when they have information that someone may be misusing financial powers in relation to an adult lacking capacity, report the facts and circumstances of the case to the local authority (i.e. make an adult protection referral under section 5 of the ASP Act). In many cases anecdotal evidence from Health and Social Care Partnerships has shown that where there are reports of financial concerns made to local authorities then as ASP referrals from the OPG, there are usually also concerns relating to welfare matters.

The local authority normally investigates welfare and financial matters using powers under the ASP Act and uses appropriate powers to safeguard adults, including when capacity may be unclear. Section 4 of the ASP Act places a duty on councils to make enquiries about an adult’s well-being, property or financial affairs if the council knows or believes that the adult is at risk and the council may have to intervene in order to protect the adult’s well-being, property or financial affairs.

Under the AWI Act the local authority have a function to investigate complaints about the exercise of functions relating to the personal welfare of an incapable adult in relation to welfare attorneys, guardians, persons authorised under intervention orders, or any circumstances where the personal welfare of the adult seems to them to be at risk. The AWI Code of Practice for local authorities^[16] also requires that a local authority should inform the MWC of the outcome of all welfare investigations.

If, following an investigation, the local authority decides that no further action is required, this should also be reported to the MWC. If the complaint was as a result of a complaint by a third party, they too should be advised of the result. If the MWC are not satisfied with the local authority’s investigation into a complaint relating to the functions of attorneys, guardians and interveners under section 10(1)(c) of the AWI Act, the MWC can themselves investigate that complaint^[17].

Criticism of the investigatory process

The purpose of any investigation under the AWI Act is to establish if any action requires to be taken to safeguard the personal welfare or property and financial affairs of the adult. There are currently statutory duties and responsibilities around the reporting of concerns for the differing agencies.

The investigatory process for AWI cases has been criticised both in the 2018 consultation and the SMHLR. From this work came the general consensus that the investigation process needed to be more unified across welfare and financial matters. It was felt each of the organisations who have statutory responsibilities to receive and investigate complaints were working independently. It wasn’t always clear who the first point of contact should be for cases of common interest and there was no clearly specified escalation process for these cases.

The recent SMHLR set out a recommendation on improving the investigation framework within the AWI Act. It stated that at present there was no clear investigation structure with local authorities carrying out social work functions, Police, the MWC and OPG who are all working independently. It recommended^[18] that a comprehensive investigatory framework should be developed with OPG, local authorities, the MWC and Police Scotland and full and equal participation with persons with lived experience including unpaid carers.

Some of the stakeholder views expressed during the SMHLR indicated a need for a clear pathway for investigations, including possible outcomes, which is well communicated to all who may be taking part at every stage, so as to reduce worry and uncertainty about the process. Other views expressed were that the investigation structure of Power of Attorney (POA) was not clear as they did not know who to report their concerns to.

We agree with the SMHLR that there needs to be clearer communication between each of the agencies and agreement made on the investigation pathway for cases of common concern. First contact should be clearly specified, and the escalation process marked out. It needs simplified and perhaps directed through one body and there needs to be more accountability.

Splitting investigatory responsibilities of the property and financial affairs of adults lacking capacity between the OPG and local authority.

We are proposing that we split the investigatory responsibilities between the OPG and local authority. OPG would retain the investigatory function for the areas it actively supervises and where the adult already lacks capacity. This will cover financial guardianship orders, financial intervention orders and ATF (Part 3).

OPG would not have an investigative role in continuing powers of attorney. The local authority as part of its adult support and protection functions would take responsibility for cases where there is a continuing power of attorney or where the adult lacks capacity and there is no order in place under the AWI Act. These are cases where the adult has fluctuating capacity or where there are concerns about capacity or where incapacity has yet to be determined and there is most chance of duplication of effort between OPG and local authorities.

The current process v the proposed process is summarised by the flowchart below:

Current investigation process for AWI cases

Office of the Public Guardian: Investigate

• Financial guardianship orders
• Continuing power of attorney (where the adult lacks capacity)
• Access to Funds
• Intervention orders (with property or financial powers)
• Any circumstances where the property or financial affairs of an incapacitated adult seem to be at risk.

Local authority: Investigate

• Guardianship orders relating to welfare
• Welfare power of attorney
• Intervention orders relating to welfare
• Any circumstances where the personal welfare of an incapacitated adult seems to be at risk

Proposed new investigation process for AWI cases

Office of the Public Guardian: Investigate

• Financial guardianships
• Financial intervention orders
• Access to Funds

Local authority: Investigate

• Guardianship orders relating to welfare
• Welfare power of attorney
• Intervention orders relating to welfare.
• Any circumstances where the personal welfare of an incapacitated adult seems to be at risk.
• Any circumstances where the property or financial affairs of an incapacitated adult seems to be at risk (apart from financial guardianship orders, financial intervention orders and access to funds)
• Continuing powers of attorney(where the adult lacks capacity)

The investigatory powers would be clearer because we are proposing that OPG investigate financial guardianships, ATF and financial intervention orders. However we know that when there is financial abuse it often comes hand in hand with welfare abuse and vice versa. We anticipate that OPG will require to make an adult support and protection referral to the local authority, adhering to their responsibilities under section 5 of the ASP Act (noting that the OPG have duties of cooperation under section 5). The referral will confirm that it is taking forward a property and finance investigation under guardianships, ATF and intervention orders so that the local authority can check the welfare aspects in relation to the adult concerned.

The reason for the proposed structural changes is to provide greater clarity for those reporting concerns so they are clear on the most appropriate agency to contact in the first instance. There would be clearly defined responsibilities and there is the opportunity to reduce duplication of effort and for the respective agencies to develop their expertise.

In a practical sense, difficulties can arise when Council Officers have to complete complex financial investigations, often described as a “forensic accounting task”. Social work practitioners are not trained to undertake these types of financial audits however their evidence through ASP inquiries with investigative actions can be relied upon. These inquiries are time consuming and complex, by their nature. With the changes we are proposing the local authority would have fewer cases like this but would retain the expertise in the area of welfare.

In the course of any investigation, by either the OPG or the local authority, it may be suspected that an offence has been committed under the AWI or ASP Acts. If so a report should be made to the police. The duty to cooperate includes the ability to share information under section 5 of the ASP Act and we do not intend on changing this.

Information sharing between the OPG, the MWC and the local authority is also covered under section 12(2) of the AWI Act which states: For the purposes of any investigation mentioned in subsection (1), the OPG, the MWC and a local authority shall provide each other with such information and assistance as may be necessary to facilitate the investigation.

We anticipate that the proposed changes would promote more joint working between the OPG and the local authority as a direct consequence of the more proactive role they would be undertaking. It would therefore improve the reporting of concerns made to them under section 12 of the AWI Act. The duties under section 5 of the ASP Act would still remain the same and this would include having a data sharing agreement about any cases of interest.

With the proposed changes there would still need to be a clear need for information sharing and communication to be maintained throughout any investigatory process and clear guidance accompanying any statutory changes. Local authorities would require to be satisfied as to the processes and procedures in those situations where the OPG would be the lead investigatory body. This would ensure that there is confidence in the process and would mitigate the need for a parallel process under ASP duties where this might otherwise be required.

Evidence that information is being appropriately shared as investigations progress and outcomes are identified would give ensure greater confidence in the processes. Governance and monitoring arrangements would require to be developed in order to give assurance that investigations are proceeding as intended and that outcomes are shared, and any additional interventions required are actioned timeously.

The above proposal would delineate which professional body is the identified organisation to lead these investigations and prevent resources from being duplicated in the same case, whilst maintaining information sharing. It would also make it clearer where responsibility lies for investigation of cases.

Questions

10. Do you agree that the investigatory responsibility between OPG and local authority should be split in the manner outlined above?

11. Will these changes provide greater clarity on the investigatory functions of OPG and local authority?

12. Will this new structure improve the reporting of concerns?