Adults with incapacity: code of practice for local authorities

Chapter 9 Investigations

INVESTIGATION WHERE PERSONAL WELFARE OF AN ADULT APPEARS TO BE AT RISK

9.1 The duty of the local authority to investigate circumstances where the personal welfare of an adult appears to be at risk is a statutory function under the 2000 Act. This means that the assessment and care management functions of local authorities must be brought into play whenever it comes to their attention that an adult in this situation is within their geographical area. In cases which indicate that urgent action is needed to protect the person from harm, then action may be taken under the 2003 or the 2007 Act as appropriate.

9.2 The routes by which information about an adult whose personal welfare seems to be at risk may arrive have already been discussed in chapter 3. All first line contacts should be aware that such investigations are a matter for social work officers. Chapter 3 also discusses the need for first line contacts to have clear guidance to refer the matter to the duty team or as appropriate.

9.3 First line contacts should inform the person who has brought the adult's circumstances to their attention that the matter will be referred to the duty social work team.

9.4 It is essential that there is no delay in referral by any first line contact to the duty team. The duty team will need to consider all available information and consider which powers it will be appropriate to use before intervening. The procedure to follow should be made clear in local guidance.

Designation of investigating officers

9.5 The local authority may wish to designate certain officers as having the role of 'investigating officers'. An officer carrying out an investigation under the 2000 Act is referred to below as 'the investigating officer'. If a social work officer receives information that the personal welfare of an adult is at risk and is not an investigating officer, he or she should pass the information to an investigating officer immediately.

Liaison with the MWC

9.6 Investigation of circumstances where the personal welfare of an adult with a mental disorder appears to be at risk is a function which the local authority exercises in parallel with the MWC. It will be important to liaise with the MWC in order to avoid possible duplication and to share information. Which body would be most appropriate to take a lead should be discussed. In any case it is important to report significant incidents to the MWC. Such arrangements as to how the complaint is to be taken forward should be made clear to the adult and others involved. It is advised that the importance of liaising with the MWC is stressed in local guidance issued in relation to investigations under the 2000 Act.

Purpose of the investigation

9.7 The purpose of the investigation is to ascertain whether there is any need to take action either under the 2000 Act or otherwise to safeguard the personal welfare of the adult. This code deals with situations where the adult is found to have impaired capacity. It is possible that an investigation could find that the adult's capacity is not impaired in relation to the cause for concern, but is vulnerable for some other reason, for example physical infirmity or mental illness. The code does not deal with the action required where the adult is at risk for some other reason than incapacity as defined by the 2000 Act. In such circumstances, intervention under the 2007 Act or 2003 Act will need to be considered. Where an adult may lack capacity due to mental disorder an intervention under the 2003 Act may be appropriate. The duty social worker will need to make an assessment of which route will be most appropriate.

ACTION BY INVESTIGATING OFFICER/CARE MANAGER

9.8 The investigating officer will need to take the following action:

• begin by carrying out an initial assessment - in practice this may be sufficient to obtain enough information to resolve the concern;
• however, if it is necessary to carry out formal proceedings then the following action should be taken:
  • on preparation or receipt of a report requiring an investigation under section 10(1)(d) of the 2000 Act, the investigating officer should open a file and place the information initially received on file (although urgent action should obviously not be held up for this step);
  • obtain any information about the adult held by statutory authorities;
• visit the adult;

The investigating officer should prepare to visit the adult in order to obtain first hand information about the adult's circumstances. In cases where there is a fear of conflict with the adult or his/her carers or associates, the investigating officer should arrange to attend the visit with a colleague.

• take account of the views of significant others;

The principles require anyone exercising functions under the 2000 Act to take account of the views of the nearest relative, primary carer and named person of the adult, and any other person appearing to have an interest in the personal welfare of the adult, and any existing continuing or welfare attorney or guardian. The investigating officer will need to contact these people, if they exist, in the course of the investigation. However it is a matter of judgement whether they should be informed of the visit to the adult or invited to attend. It may be that in some cases there is evidence that the adult is at risk because of the actions of one or more people involved with him/her.

9.9 If it appears likely that access to the adult will be denied, the investigating officer should be alert to the possible need for action under the 2007 Act or the 2003 Act, as the 2000 Act does not itself confer powers to deal with urgent protection of adults.

Conduct of the visit

9.10 The main purpose of visiting the adult is to obtain information but it may be that the need for urgent action will emerge at the visit.

9.11 The officer should explain the purpose of the visit and what may happen as a result of the visit. The person should be given information about his or her rights.

Possible need for action outwith the 2000 Act

9.12 If the adult has capacity, but is at risk, the 2000 Act is not able to offer any assistance. The officer should consider what other social work or medical interventions can be offered and should follow local procedures with regard to adults in need of support and protection, i.e. on the use of the 2003 or 2007 Acts.

9.13 In cases where the 2003 Act appears to be relevant, the investigating officer should consult a MHO if he/she is not one, and liaise with appropriate medical practitioners.

POSSIBLE NEED FOR URGENT ACTION

9.14 Although the 2000 Act does not expressly provide for urgent action, the investigating officer may consider that an intervention order or interim guardianship should immediately be sought (see chapter 6 on intervention orders and guardianship).

9.15 Where it is considered that an interim order is required, the care manager will need to co-ordinate a case consultation to establish who will do what and to ensure that all the necessary steps to obtain the appropriate order or guardianship are taken. Where the person has a mental disorder, the 2003 Act would allow local authorities to seek an order for the immediate removal of the adult to a place of safety for a prescribed period. Where appropriate, local authorities should put in place arrangements to apply for an interim guardianship order within this abbreviated timescale. This will require liaison with local medical practitioners about the urgent provision of the necessary reports of incapacity to support the application.

INFORMATION TO BE OBTAINED IN THE COURSE OF AN INVESTIGATION

9.16 Where the person appears to lack capacity or is already subject to an intervention under the 2000 Act, the officer should enquire into the arrangements which are in place to intervene in personal welfare decisions on behalf of the adult. There are various possibilities and the following are not exhaustive:

• the adult's carer or relatives may be taking these decisions informally without any authorisation under the 2000 Act. It may be of benefit to the adult that they should seek formal authorisation in order to be subjected to supervision;
• there may be formal interventions in place under the 2000 Act which are working satisfactorily. It may be that the adult's welfare is not at risk but the circumstances have been misunderstood by whoever reported the case;
• there may be formal interventions in place under the 2000 Act, but the proxy or proxies may not be discharging their functions satisfactorily or at all;
• the individual may have assets and be trying to manage his/her own affairs and be vulnerable to financial exploitation with consequent risks to personal welfare;
• there may be no-one making any interventions in relation to the adult. For example the adult may live alone or have been rejected by family and friends; or may be destitute;
• there may be one or more proxies with financial powers, but no-one with welfare powers in relation to the adult;
• a proxy with financial powers may be abusing these by failing to use the adult's resources for his or her benefit;
• the nearest relative may be abusing his or her position in relation to the adult and it may be desirable to apply to the sheriff to have him or her displaced.

9.17 Any relatives or carers of the adult should be interviewed and their role in the adult's personal welfare and/or finances recorded. The adult's views should also be recorded, as above. The investigating officer should seek to gain as complete a picture as possible of the adult's personal circumstances and the welfare issues affecting him or her.

Obtaining information from other sources

9.18 Having visited the adult and obtained such information as is available about the person's circumstances, it may be necessary to supplement this information by following up leads emerging at the visit. For example, the person's welfare may be at risk because the normal primary carer is temporarily unavailable. The carer may have been taken into hospital and it may be necessary to contact the hospital authorities to check how long he/she will be unavailable.

9.19 The OPG may need to be contacted and asked to carry out an investigation into circumstances where the person's financial affairs or property appear to be at risk; or into a complaint against a proxy with powers over property and financial affairs.

9.20 Information about the adult's current wishes or feelings may need to be obtained outside the meeting. For example, the adult's children or other close relatives, GP, member of the clergy, solicitor, cultural or other associates might be contacted, and they may be able to provide information on the adult's past wishes and feelings.

REPORTING A POSSIBLE CRIMINAL OFFENCE

9.21 Under section 83 of the 2000 Act it is an offence for any person exercising powers under the 2000 Act relating to the personal welfare of an individual to ill-treat or wilfully neglect him/her. The offence is punishable on summary conviction to a fine not exceeding £5000 or a term of imprisonment not exceeding 6 months, and on indictment to a fine or a term of imprisonment not exceeding 2 years.

It may be necessary as a result of the investigation to report a suspected offence under the 2000 Act or any other offence to the police. Appropriate liaison procedures with the local police force will need to be put in place. The local authority legal department should be informed if a suspected offence is to be reported to the police.

9.22 The reporting of a suspected offence to the police should not hinder the local authority from taking any necessary action under the 2000 Act or otherwise to protect and safeguard an adult whose personal welfare may be at risk.

REPORTING THE OUTCOME OF THE INVESTIGATION

9.23 Once the investigation is completed the officer should prepare a report with recommendations. This should cover the topics in Annex 3, but should additionally discuss the factors which suggest that the adult's welfare is at risk and record whether a criminal offence has been or, in the opinion of the investigating officer, should be reported to the police.

9.24 The report should make recommendations and justify these.

Implementing the report

9.25 The process for implementing the report will normally form part of the local authority's care management procedures. Specific procedures relating to intervention orders and guardianship are explained in chapter 6.

Report outcome to MWC

9.26 The report and implementation plan should also be copied to the MWC where the adult's incapacity is due to mental disorder.

Completing file on investigation

9.27 A copy of the report should be placed on the file for the investigation, and a cross reference made to the casework file on which subsequent action in relation to the adult will be recorded.

INVESTIGATING COMPLAINTS AGAINST A PROXY

9.28 The local authority has the function of investigating any complaints received in relation to the exercise of welfare powers by proxies i.e. attorneys, guardians or interveners.

Possible sources of complaints

9.29 Complaints against the proxies may be received from a range of complainers. They may be received from, for example:

• adult him or herself;
• relative, carer, concerned neighbour or friend of the adult;
• professional such as the adult's medical practitioner, social work officer or community nurse;
• adult's employer or the manager of an establishment involved in educating or training the adult;
• manager of a residential home where the adult resides.

Complaints may come direct or may be referred on from the MWC.

Liaison with the MWC

9.30 The function of investigating complaints is also conferred on the MWC. However, the 2000 Act provides that the MWC will only carry out an investigation if it is not satisfied with the outcome of an investigation carried out by the local authority, or if the local authority has failed to investigate the complaint. It would therefore be good practice for the local authority to liaise with the MWC about the investigation of any complaint received so as to ensure that any special concerns of the MWC are taken into account from the outset. A report of the investigation will normally be sent to the MWC (see below).

Purpose of investigation

9.31 The duties of attorneys are set out in part 2 of the 2000 Act and in the code of practice for attorneys published by the Scottish Ministers under section 13 of the 2000 Act. The duties of guardians and persons authorised under intervention orders are set out in part 6 of the 2000 Act and in the code of practice for persons authorised under intervention orders and guardians published by the Scottish Ministers.

9.32 The purpose of investigating a complaint includes ascertaining whether:

• the proxy has exercised his or her functions under the 2000 Act properly so as to safeguard the adult's personal welfare;
• the proxy has adequate powers to safeguard the adult's personal welfare, or whether supplementary powers should be sought by the proxy or someone else.

9.33 Where the complaint concerns management of property or finances or concerns about these matters emerge during the course of the investigation it will be for the Public Guardian to investigate.

Possible outcomes of investigation

Where the proxy's powers are inadequate

9.34 If the alleged misconduct by the proxy is due only to inadequacy of powers, then the outcome may be a recommendation that the proxy or someone else should obtain additional powers. Depending on the need, this could be achieved by making changes to an existing guardianship order or applying for an intervention order.

Where misconduct is due to improper or inadequate exercise of existing powers

9.35 If a proxy has acted improperly or unwisely because of ignorance or lack of thought rather than deliberately, or because they were not advised adequately, it may be possible at the outset to provide the necessary information and support to ensure he or she continues in the correct manner.

9.36 If the alleged misconduct by the proxy is due to improper or inadequate exercise of his or her existing powers, with apparent deliberate intent, then a variety of outcomes are possible. These could include:

• application to the sheriff (section 3) for directions to be given to the proxy or someone else;
• application to the sheriff (section 20) to bring a welfare attorney under local authority supervision;
• in the case of a proxy already under local authority supervision, an increase in the intensity of supervision;
• application to the sheriff to curtail, modify or remove the proxy's powers or to appoint an additional proxy to share the powers;
• application to the sheriff for one or more intervention orders to supplement or replace existing orders which are not being properly implemented;
• application to the sheriff to remove a proxy's powers and replace the proxy by a welfare guardian or a different welfare guardian, who may be the CSWO;
• reporting the matter to the police.

Designation of complaints officers

9.37 The local authority should designate officers whose responsibility it is to investigate complaints against proxies. As officers of local authorities may also be involved in supervising attorneys, and will be involved in supervising guardians, and may also be exercising welfare guardianship or be authorised under an intervention order, there could be conflict of interest if the same officer is involved in complaints. It would therefore be good practice to designate as officers to investigate complaints, officers who are not already involved in supervision of proxies or authorised under an intervention order, or involved in the exercise of guardianship powers in relation to the same adult.

9.38 If separation of functions is difficult to achieve it would be an option in relation to adults whose incapacity is due to mental disorder to ask the MWC to carry out the investigation. The MWC could do this under section 9(1)(d) on the grounds that the local authority has failed to carry out the investigation.

Action on receipt of a complaint

9.39 All officers should be aware of the contact details of the designated complaints officers. This is so that if they receive a complaint, they can refer the complainer on to the appropriate complaints officer; and so that they can advise persons with an interest in the welfare of the adult of the right to, and the proper address to complain about a proxy.

Action by complaints officer

9.40 The complaints officer should study the details of the complaint, if received in writing. If received orally, the complaints officer should write down a report of the complaint as communicated to him or her. The complaints officer may need to contact the complainer to clarify details of the complaint at this stage.

9.41 The MWC should be informed of the nature of the complaint, as indicated above. The MWC should be asked at this stage to provide any information available to them on the adult and the activities of the proxy complained of.

9.42 As the OPG is responsible for registering all proxies, the Public Guardian should always be informed where there has been a complaint and the local authority intends to carry out an investigation. Where the proxy complained of has both personal welfare powers and power over the adult's property and financial affairs, the Public Guardian should also be informed of the nature of the complaint and asked for any relevant information. For example, it may be that a complaint which is apparently about welfare matters is really about an alleged misuse of the adult's property or finance. The Public Guardian may already be investigating the matter or may consider that she should do so.

Decision not to investigate a complaint

9.43 The complaints officer may take the view that the complaint should not be investigated by the local authority. This decision must be authorised by a team leader, supervisor or senior social work officer.

9.44 Any decision not to investigate a complaint should be communicated to the MWC and to the complainer. The complainer should be advised of the MWC's power to investigate if it is not satisfied with the outcome of a local authority investigation, where the complaint is genuinely about welfare powers. If the complaint turns out to be about property or financial powers, the complainer should be advised to contact the Public Guardian.

Decision to investigate a complaint

Inform the complainer

9.45 If the decision is to investigate the complaint, the complaints officer should so inform the complainer.

In case of urgency

9.46 If it appears that there could be urgency, in that the adult's personal welfare has been put at risk, the complaints officer should follow local procedures in relation to the 2007 Act.

Seek the proxy's explanation of the circumstances

9.47 The complaints officer should present the details of the complaint to the proxy and invite a response. This can be done orally or in writing. If there appears to be urgency, in the sense that the circumstances suggest the adult's welfare is or may be at risk, then an oral interview should be undertaken as soon as possible. Where there is an oral interview a record should be made of this which should be sent to the proxy, and placed on the file.

9.48 Ask to see the proxy's records of the exercise of his/her powers. Attorneys, persons authorised under intervention orders, and guardians are obliged to keep records of the exercise of their powers. The proxy complained of should be asked to let the complaints officer inspect these records.

Visit the adult

9.49 The complaints officer should arrange a meeting with the person to check his/her perceptions of the proxy's handling of his/her personal welfare. The adult should be invited to include relevant others in the meeting, but not the proxy or the complainer to avoid any unpleasant confrontations. If no one else is available to support the person then consideration should be given to involving an independent advocate.

Action in the event of non-co-operation by the proxy

9.50 Any proxy who is threatening to withhold access to the person with incapacity should be warned that he/she risks immediate application to the sheriff for removal of his/her powers. It would be possible for the complaints officer to apply to the sheriff for a direction to the proxy to allow access to the adult under section 3(3) of the 2000 Act. In such cases it will also be relevant to consider the use of powers under the 2007 Act or 2003 Act.

Conduct of the visit

9.51 It is essential to seek the adult's own views about the alleged misconduct in relation to his or/her personal welfare, if he/she can communicate these at all. This is in order to ascertain whether the proxy's alleged misconduct is related to failure to observe the need to take into account the person's past and present wishes and feelings. It may be that he/she can still express wishes and feelings which are in conflict or in agreement with the proxy's actions.

9.52 The proxy may argue that it would be damaging to the person's physical or mental health to be informed of the complaint. It would be possible for the complaints officer to visit the person without informing him/her of the complaint. However this would not be a desirable course of action.

9.53 If there is likely to be obstruction by the proxy or others, it may be desirable for the complaints officer to carry out the visit with a colleague.

9.54 The complaints officer should have prepared a list of questions and facts to be ascertained, relating to the alleged misconduct of the proxy.

9.55 At the visit, the complaints officer should:

• explain clearly that a complaint has been received against the named proxy;
• explain clearly the procedure being followed to investigate the complaint and the possible outcomes;
• explain what information he or she requires from the adult and others present to further the investigation;
• remind everyone that the adult's welfare is the central concern;
• explain that the 2000 Act provides that the local authority may take such steps, including the making an application to the sheriff, as seem to them to be necessary to safeguard the personal welfare of the adult, as a result of the investigation, but that the local authority would prefer to proceed with co-operation, rather than with compulsion if possible.

9.56 The complaints officer should request the adult's views on what might be done to improve or change the situation. However, the complaints officer should be on guard for any hints that the adult is unduly susceptible to the proxy's influence.

If the adult has communication difficulties which make it difficult, verbally, to find out his/her wishes and feelings, then other means appropriate to the needs of the individual must be explored. Annex 2 gives guidance on the steps that can be undertaken.

Seeking the views of relevant others

9.57 It will be important to gather the views of significant others with an interest in the personal welfare of the adult. This might be achieved either through a meeting or separate letters or phone calls.

Obtaining information from other sources

9.58 Having met the adult and obtained information about his/her circumstances, it may be necessary to supplement this information by following up leads emerging at the visit. For example, it may be suggested that someone else should be appointed as welfare guardian in addition to, or instead of, the person complained of; or that specific directions are sought from the sheriff to curtail or control the behaviour complained about.

9.59 Information about the adult's current and past wishes or feelings may need to be obtained outside the meeting. For example, the adult's children or other close relatives, friends, support worker, GP, solicitor might be contacted, and they may be able to provide information on the person's past and present views on the matters to be addressed.

Reporting a possible criminal offence

9.60 Under section 83 of the 2000 Act it is an offence for any person exercising powers under the 2000 Act relating to the personal welfare of an adult to ill-treat or wilfully neglect that adult. The offence is punishable on summary conviction to a fine not exceeding £5000 or a term of imprisonment not exceeding 6 months, and on indictment to a fine or a term of imprisonment not exceeding 2 years.

It may be necessary as a result of the investigation to report a suspected offence under the 2000 Act or any other offence to the police. Appropriate liaison procedures with the local police force will need to be put in place. The local authority legal department should be informed if a suspected offence is to be reported to the police.

9.61 The reporting of a suspected offence to the police should not hinder the local authority from taking any necessary action under the 2000 Act or otherwise to protect and safeguard an adult whose personal welfare may be at risk.

Reporting the outcome of the investigation

9.62 Once the investigation is completed the officer should prepare a report with recommendations. This should cover the topics in the Annex 3, an it will be essential to record the factors which are relevant to the complaint against the proxy and whether a criminal offence has been or, in the opinion of the investigating officer, should be reported to the police.

• The report should make a clear finding as to whether the complaint is upheld or not.
• The report should give reasons for this finding. For example it should identify any conflict of interest which affected the proxy in relation to the adult or in relation to others with an interest in the person's welfare. If others had malicious or misguided motives for the complaint this should be identified as it may be relevant to their future involvement in the person's affairs. Equally if the proxy has misused his/her powers, this should be clearly identified.
• If the proxy's misconduct was related primarily to the inadequacy of his or her powers to deal with the situations that arose, this should be identified. The proxy may be able to exercise additional powers competently if given them and properly supervised in their use.
• Whether or not the complaint is upheld, the report may make recommendations and will need to justify these.

Informing the proxy and the adult

9.63 The report should be sent to the proxy complained of and a meeting offered to explain and discuss the recommendations.

The report should be given to the adult to explain and discuss the recommendations. A face to face meeting will ensure that he/she receives the report and, in accordance with the principles, is enabled to understand its contents as far as possible and express his/her views.

9.64 A copy should also be sent to the complainer. If appropriate, the findings may be shared with others involved in the investigation. All parties should be reminded that the MWC also has power to investigate the complaint if not satisfied with the outcome of the local authority investigation (although the MWC does not have power to investigate simply because someone is else is dissatisfied).

Completing file on investigation

9.65 A copy of the report should be placed on the adult's and, where applicable, the proxy's file.

Report outcome to MWC

9.66 The report and implementation plan should be copied to the MWC where the adult's incapacity is due to mental disorder.

Copy report to Public Guardian

9.67 The report should be copied to the Public Guardian who will have registered the proxy's appointment.

Implementing the report

9.68 The process for implementing the report may involve an application to court to displace a proxy and put in place other arrangements for protecting and safeguarding the adult's personal welfare. The implementation of these other measures will normally form part of the local authority's care management procedures. Specific procedures relating to intervention orders and guardianship are explained in parts 5 and 6 of this code respectively.