Adults with incapacity: code of practice for local authorities

Introduction

Who this code is for

This code of practice is primarily for local authority staff with duties and powers under the Adults with Incapacity (Scotland) Act 2000 ('the 2000 Act'). It is particularly relevant to mental health officers, managers of community care teams, learning disability teams, and mental health teams. It will also be of relevance to NHS staff directly involved in joint community care teams and hospital discharge teams.

In addition, it will be important for voluntary and private sectors to be familiar with the code for a wide range of reasons - from taking on roles contracted out by the local authority through to awareness of triggers of assessment for a possible formal intervention by the local authority.

What does the code cover?

It contains detailed guidance on all the statutory functions which are conferred on local authorities under the 2000 Act. It supersedes the code published in March 2001 to take into account subsequent changes to the 2000 Act, and in particular those introduced in Parts 2 and 3 of the Adult Support and Protection (Scotland) Act 2007 ('the 2007 Act'). A summary of all the amendments to the 2000 Act is available at:http://www.scotland.gov.uk/topics/justice/civil/awi. Throughout the codes of practice, the Part 1 'General Principles' are referred to as 'the principles'.

The code provides guidance, where appropriate, in relation to measures under the 2000 Act, and to other measures which continue to be available where the 2000 Act does not apply or is not invoked. Importantly, it incorporates the ' Guidance for local authorities: provision of community care services to adults with incapacity' ( CCD5/2007, 30 March 2007) which sets out the powers which local authorities have under the Social Work (Scotland) Act 1968 (the 1968 Act), to provide services to adults who lack capacity to consent to receiving services. (See chapter 4). It should be read in conjunction with Scottish Executive Guidance on Care Management in Community Care ( CCD8/2004). Readers should also be familiar with the codes of practice for other parts of the 2000 Act.

In addition, the code highlights areas where consideration of interface issues with other legislation is particularly relevant, especially the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act) and the Adult Support and Protection (Scotland) Act 2007 (the 2007 Act).

Status of the code

Section 13 provides that Scottish Ministers must prepare codes of practice containing guidance for those exercising functions under the 2000 Act. This code is for local authorities exercising functions under the 2000 Act.

Whilst these codes of practice are guidance and therefore not binding, failure to comply with them may be one of the factors considered by the Public Guardian, the Mental Welfare Commission, the local authority or the sheriff in considering matters such as the continuing suitability of the person to exercise those functions, in investigating circumstances in which the adult appears to be at risk or in applications before the court.

Responsibility of Chief Social Work Officer to implement the code

This code suggests that it should be the responsibility of the chief social work officer of each local authority to ensure that the code of practice is implemented by all staff for whom it is relevant, so far as he/she has control of such staff.

Terms used

• Throughout the code of practice the Adults with Incapacity (Scotland) Act 2000 is referred to as the '2000 Act'.
• 'adult' refers to the person aged 16 and over with impaired capacity - also referred to as the 'person' or 'individual' in this code.
• 'carer' refers to the partner, spouse, family member or friend who provides cares, in an unpaid capacity, for an adult who lacks the ability to make some or all decisions for themselves.
• 'primary carer' means the person or organisation primarily engaged in caring for the adult. The primary carer will normally be a relative or friend but could be the service manager responsible for the provision of the day to day care needs of the adult (for example, where the adult is in residential care).
• 'named person' means the person nominated (under the Mental Health (Care and Treatment)(Scotland) Act 2003, by the adult to represent his/her interests or give support. This is automatically the primary carer where the person had not named someone else.
• 'intimation' - term used for informing relevant parties (nearest relative, carer, primary carer, named person and anyone else with an interest in the welfare of the adult) of the application and allowing the opportunity for comment or objection.
• 'relevant others' is used to refer to the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, named person, primary carer, any other proxy, and any other person with an interest in the adult's welfare, such as the care manager.
• 'independent advocate' this is someone employed by an independent advocacy service to support the adult in having his/her views and wishes heard. This is different from a legal advocate who represents someone at court.
• 'caution' this is bond which serves as a type of insurance to safeguard the adult form loss caused by the actions of the guardian or intervener.
• 'security' this means an alternative to caution to provide adequate protection to the adult's estate.
• 'order' is used where reference is to both intervention and guardianship orders.
• 'interlocutor' is the decision or order of the court in relation to the application made (a copy of which is sent to the OPG).
• 'social work officer' is used to cover social work services staff in the broad sense, including, where appropriate, qualified social work officers, occupational therapists, etc., employed to provide social work or similar services.
• 'residential care' refers to all categories of care home, including those which provide nursing care/specialist nursing care.
• 'proxy' will be used to refer to anyone who has been empowered under the 2000 Act to take decisions or action on behalf of an adult whose capacity is impaired. Sometimes an officer will also be a proxy, in particular if the officer is exercising powers under an intervention order or carrying out the day to day duties of welfare guardianship on behalf of the chief social work officer.
• ' OPG' refers to The Office of the Public Guardian (Scotland).
• ' MWC' refers to The Mental Welfare Commission.
• ' MHO' refers to Mental Health Officer.
• ' CSWO' refers to the Chief Social Work Officer.
• 'practising solicitor' is a solicitor holding a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act 1980 (c.46).
• 'the 1968 Act' refers to the Social Work (Scotland) Act 1968.