Adults with incapacity: code of practice for local authorities

Chapter 1 Overview of the 2000 Act

1.1 The law of Scotland generally presumes that adults (those aged 16 or over) are legally capable of making personal decisions for themselves and managing their own affairs. That presumption can only be overturned if there is evidence that the person's capacity is impaired in relation to the matter in hand. The 2000 Act sets out a framework for regulating intervention in the affairs of adults who have impaired capacity, in the circumstances covered by the 2000 Act. The framework is underpinned by principles and enables interventions to be tailored to the needs of the individual.

INCAPACITY

1.2 'Incapacity' is defined in the 2000 Act only for the purposes of the 2000 Act. The 2000 Act recognises that a person may be legally capable of some decisions and actions and not capable of others.

1.3 The 2000 Act allows for intervention in a wide range of property, financial or welfare matters where the adult lacks capacity. But an intervention is only permitted where the adult lacks capacity in relation to the subject matter of the intervention. It is necessary to consider whether the adult lacks capacity in relation to the relevant matter each time a decision or action needs to be taken.

1.4 For the purposes of the 2000 Act 'incapable' means incapable of:

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions

in relation to any particular matter, by reason of mental disorder or of inability to communicate because of physical disability.

With regard to 'communicating a decision' a person should not be automatically assumed to lack capacity because of a severe communication difficulty. All means appropriate to the needs of the individual should be used to assist the person to communicate. This may include specialist support; assistance from the person who knows the individual well or/and mechanical aids. For further details see Annex 2.

1.5 No person shall be treated as suffering from mental disorder by reason only of: promiscuity or other immoral conduct; sexual deviancy; dependence on alcohol or drugs.

1.6 It is central to the 2000 Act that adults must not be labelled as incapable on the basis of a diagnosis alone, or because they behave in an unusual or unwise manner. The assessment of capacity must be made in relation to the particular matter or matters about which a decision or action is required.

An adult does not have impaired capacity simply by virtue, for example, of:

• being in receipt of community care services;
• having a psychotic illness;
• having dementia, particularly in the early stages;
• having difficulties with speech or writing;
• having an addiction;
• having learning difficulties;
• being vulnerable or at risk from him or herself or others;
• behaving irrationally;
• having a history of offending.

THE PRINCIPLES

Taking account of the principles of the 2000 Act

1.7 The 2000 Act requires the following principles to be applied when deciding which measure will be most suitable for meeting the needs of the individual. The principles must also be used whenever decisions need to be made on behalf of the adult. The 2000 Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so. Any decision or action taken under the 2000 Act will only be lawful if it can be demonstrated that the principles have be applied.

These principles must also be applied where an intervention is authorised under s13ZA of the 1968 Act.

The principles apply to anyone - private individual or professional who is carrying out a function or exercising a duty under the 2000 Act. For example, a care manager with the community care team will need to consider the principles in assessing whether the person who lacks capacity to consent, should be provided with the services he or she needs under the 1968 Act or the 2000 Act. See chapter 4 for detailed guidance. All action should stem from the needs of the adult and must be for his or her benefit.

Principle 1 - benefit

There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot be reasonably achieved without the intervention.

Principle 2 - least restrictive option

Where it is determined that an intervention in the affairs of an adult under or in pursuance of the 2000 Act is to be made, such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention.

Principle 3 - take account of the wishes of the adult

In determining if an intervention is to be made, and, if so, what intervention is to be made, account shall be taken of the present and past wishes and feelings of the adult so far as they can be ascertained by any means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise) appropriate to the adult. Before concluding that someone is totally unable to communicate and therefore lacks capacity, strenuous efforts must be made to assist and facilitate communication - using whatever method is appropriate to the needs of the individual, including advice and assistance from a speech and language therapist.

It is important to note that it is compulsory to take account of the present and past wishes and feelings of the adult if these can be ascertained by any means possible.

Principle 4 - consultation with relevant others

In determining if an intervention is to be made, and, if so, what intervention is to be made, account shall be taken of the views of:

• the nearest relative and primary carer of the adult;
• the named person;
• any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention;
• any person whom the sheriff has directed should be consulted; and
• any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention, where these views have been made known to the person responsible;

in so far as it is reasonable and practicable to do so.

Principle 5 - encourage the person to exercise whatever skills he/she has; and the development of new skills

Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under this Act shall, in so far as it is reasonable or practicable to do so, encourage the person to exercise whatever skills he/she has concerning property, financial affairs or personal welfare as the case may be, and to develop new such skills. This would also be normal good practice for others providing support to the person.

1.8 The principles will be referred to throughout this code as they apply to local authorities:

• when considering an intervention under the 2000 Act or under section 13ZA of the Social Work (Scotland) Act 1968 (the 1968 Act);
• in exercising their functions under the 2000 Act.

MEASURES PROVIDED UNDER THE 2000 ACT

1.9 The 2000 Act provides a hierarchy of measures to act or make decisions in relation to the welfare, property, financial affairs of adults who are unable to do so for themselves. Briefly, these measures are as follows:

Powers of attorney

Under part 2, a person may appoint an attorney with powers over property and financial affairs commencing or continuing on incapacity (referred to as 'a continuing attorney'); and/or an attorney with powers over personal welfare, exercisable only on his/her own loss of capacity (referred to as 'a welfare attorney'). For further details see the Code of Practice for Continuing and Welfare Attorneys.

Access to funds - withdrawal of funds (previously referred to as intromission with funds)

Under part 3, a person (usually a carer) or an organisation, including local authorities, may apply to the Public Guardian for authority to withdraw funds from the account of an adult, to provide for the adult's day to day care. For further details see the Code of Practice for people authorised to access funds. Additional guidance for organisations is available from the Office of the Public Guardian (Scotland) ( OPG).

Management of residents' finances

Under part 4, authorised establishments (care homes and hospitals) may manage the funds of resident adults up to a prescribed limit. (For further details see the Code of Practice for managers of authorised establishments under Part 4 of the 2000 Act.)

Medical treatment and research

Under part 5, medical practitioners are given a general authority to treat adults where there is a certificate of incapacity in relation to specific treatments or medical treatment plan - subject to certain safeguards and exceptions. In addition, certain other health care practitioners, if accredited to do so, have authority to provide treatments which they are qualified to administer. It should be noted that proxies with welfare powers which include medical decision-making powers have the right to be involved in treatment decisions (where practicable and reasonable). The principles also require that others with an interest in the person should be consulted, again, where practicable and reasonable.

Medical research involving adults who cannot consent is also authorised subject to safeguards and conditions. (For further details see Code of Practice for persons authorised to carry out medical treatment or research under Part 5 of the 2000 Act.)

Intervention orders and guardianship

Under part 6, it is possible to apply to the sheriff for an intervention order to deal with clearly defined, 'one-off' financial, property or personal welfare matters in relation an adult. A guardianship order can include powers over property, financial affairs or personal welfare or a combination of these. In this code a guardian with powers over financial affairs and property is referred to as a 'financial guardian' and a guardian with powers over personal welfare is referred to as a 'welfare guardian'.

CO-EXISTENCE OF THE 2000 ACT WITH OTHER LEGISLATION

1.10 The 2000 Act does not authorise intervention in every matter where an individual may have impaired capacity. For example consent to marriage or making a will are not matters where anyone else, either within or outwith the powers conferred by the 2000 Act, can consent on behalf of another person. Certain medical treatments are also outwith the scope of the 2000 Act, in particular those specified in the Mental Health (Care and Treatment) (Scotland) Act 2003 ('the 2003 Act').

1.11 In many circumstances it will be appropriate for the local authority to use its powers under the 1968 Act to provide services to an adult who lacks capacity to consent to receiving services (for detailed guidance see chapter 4).

1.12 Social work officers need to be aware of the inter-relationship between Part 1 of the Adult Support and Protection (Scotland) Act 2007 (the 2007 Act), and the 2000 Act. Cases may arise which require careful consideration as to whether an urgent intervention is needed because of the risk to which the person is exposed, or whether an application for guardianship by the local authority might be more appropriate. Action under the former might lead to an assessment that guardianship is required to protect the person in the longer term.

1.13 The officer should also be aware that the 2000 Act co-exists with other interventions in the affairs of an adult. For example in relation to financial matters it is possible that:

• a joint 'either or survivor' bank or building society account may have been put in place whilst the adult had capacity - this can continue to be operated by the other signatory to the account;
• a trust has been set up for the benefit of the adult;
• someone has been appointed by the Department of Work and Pensions ( DWP) to receive benefits on behalf of the adult.

1.14 If an officer is in doubt as to whether an intervention can be authorised under the 2000 Act, or under some other statutory or common law provision, or cannot be authorised at all, then he/she should seek legal advice.

LIMITATION OF LIABILITY

1.15 Section 82 of the 2000 Act provides that no liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised under an intervention order, a withdrawer or the managers of a residential establishment for any breach of any duty of care or fiduciary duty owed to the adult if he, she or they have:

(a) acted reasonably and in good faith and in accordance with the principles; or
(b) failed to act and the failure was reasonable and in good faith and in accordance with the principles.

This is a crucial provision which emphasises the importance of anyone exercising powers under the 2000 Act being fully familiar with the principles and applying them properly to decisions and actions taken.

STATUTORY BODIES WITH RESPONSIBILITIES UNDER THE 2000 ACT

1.16 The statutory bodies given responsibilities under the 2000 Act are:

The sheriff

1.17 The sheriff court is the main forum for proceedings under the 2000 Act. A detailed description of proceedings under the 2000 Act and the powers of the sheriff are given in paragraphs 1.22-39 below and in subsequent parts of this code wherever relevant. Where there is doubt about how to proceed in relation to a particular case, or conflict between the local authority and others involved, it may be necessary to seek directions from the sheriff. Only the sheriff can make an intervention or guardianship order. The normal appeal mechanisms from the sheriff court to the sheriff principal, and thence to the Court of Session, apply to proceedings under the 2000 Act.

The Court of Session

1.18 The Court of Session provides a court of appeal from decisions of the sheriff principal. It is also the court which deals, at the first instance, with disputes over medical treatment.

The Public Guardian

1.19 The Public Guardian registers powers of attorney, intervention orders and guardianship orders, and authorises access to funds under part 3. The Public Guardian's investigative and supervisory functions are generally confined to property and financial affairs. The Office of the Public Guardian ( OPG) also has an advice, information and training function. For further details consult the website of the OPG at www.publicguardian-scotland.gov.uk.

The Mental Welfare Commission

1.20 The Mental Welfare Commission ( MWC) retains a general oversight of individuals whose incapacity is due to a mental disorder. The MWC's responsibility is to the adult on guardianship but they are interested in the views of the guardian on any matter affecting the health, welfare and safety of the adult. The MWC has investigatory powers in relation to those exercising personal welfare powers, but is only likely to use these where dissatisfied with the outcome of an investigation by a local authority. The MWC's supervisory and investigative role is discussed in more detail in chapters 8 and 9 of this code. For further details consult the MWC website at: www.mwcscot.org.uk.

Local authorities

1.21 The functions of local authorities under the 2000 Act are set out in Chapter 2 and good practice in relation to carrying out specific functions is provided in the body of this code.

PROCEDURES AND POWERS OF THE SHERIFF COURT AND COURT OF SESSION

1.22 The courts will always be involved in authorising local authorities to supervise proxies, or undertake the functions of proxies themselves. There follows a description of the general procedures that apply, and the powers of the courts under part 1 of the 2000 Act. The description of sheriffs' detailed powers with respect to attorneys, intervention orders and guardianship will be found in later parts of the code. It's very important for officers involved in applying the 2000 Act, including legal staff of a local authority, to be familiar with the legal procedures that have to be followed under the 2000 Act and the powers that are available to the courts.

Applications and other proceedings and appeals (section 2 of the 2000 Act)

1.23 An application to the sheriff under the 2000 Act shall be made by summary application.

1.24 If the applicant disagrees with the sheriff's decision, there is a right of appeal to the sheriff principal. The sheriff principal will consider the appeal and may allow it to be taken forward to the Court of Session. Sheriff Court Rules are in place to cover such applications.

Sheriff's powers to make consequential or ancillary orders (section 3 of the 2000 Act)

1.25 In an application or other proceedings under the 2000 Act, the sheriff may make such consequential or ancillary order, provision or direction as he or she considers appropriate.

1.26 Without prejudice to the generality of the sheriff's powers, the sheriff may:

• make any order granted by him/her subject to such conditions and restrictions as appear to him/her to be appropriate. Such conditions and restrictions can be varied on the application of the person authorised under the order; the adult; or any person entitled to apply for the order;
• order that any reports relating to the person who is the subject of the application or proceedings be lodged with the court or that the person be assessed or interviewed and that a report of such an assessment or interview be lodged;
• make such further inquiry or call for further information as appears to him/her to be appropriate;
• make such interim order as appears to him/her to be appropriate pending the disposal of the application or proceedings.

1.27 On an application by any person (including the adult him/herself) claiming an interest in the property, financial affairs or personal welfare of an adult, the sheriff may give such directions to any person exercising:

• functions conferred by the 2000 Act; or
• functions of a like nature conferred by the law of any country,

as to the exercise of those functions and the taking of decisions or action in relation to the adult as seem to him/her to be appropriate.

Appointment of safeguarder (Part 1 section 3 (4) to (5))

1.28 In an application or any other proceedings under the 2000 Act, the sheriff:

• shall consider whether it is necessary to appoint a person for the purpose of safeguarding the interests of the adult who is the subject of the application or proceedings. (The safeguarder's role is to represent the interests of the adult. This includes advising the sheriff of the adult's views so far as it is possible to ascertain them.); and
• If the sheriff does not think it appropriate for one safeguarder to act both to protect the adult's interests and to advise the sheriff of the adult's views, he or she may appoint a another person to inform the court about the adult's views.

Independent Advocacy

1.29 The 2000 Act makes provision that sheriffs must take account of the views expressed on behalf of the adult by a person providing independent advocacy services in any proceedings under the 2000 Act.

Displacement of nearest relative

1.30 Under section 4(1) of the 2000 Act it is possible for an adult to apply to the sheriff to have the nearest relative displaced, or to have information withheld from the nearest relative. The 2000 Act allows any other person with an interest in the welfare of the adult to apply to displace the nearest relative and the sheriff court also has the power to do so. The sheriff may nominate another relative to take the place of the nearest relative or may order that no-one shall exercise the functions of nearest relative. Such applications cannot be made in advance of any incapacity. It also provides that a sheriff court may make an order different to the one applied for, e.g. naming a different person from the person specified in the application.

Directions that intimation to the adult is not required

1.31 Under section 11, where intimation or notification to the adult would normally be required, and the court considers that the intimation or notification would be likely to pose a serious risk to the health of the adult the court may direct that such intimation or notification shall not be given. Under Sheriff Court Rules evidence from two medical practitioners is required.

Appointment of an interim guardian

1.32 Under section 57(5), the sheriff may, on an application being made to him, at any time before the disposal of the application for a guardianship order, make an order for the appointment of an interim guardian. Interim guardianship can be for a period of 3 months, up to a maximum of six months, where this is appropriate in the circumstances of the case, or until the appointment of a guardian whichever is sooner.

Granting an application for guardianship

1.33 Under section 58(1), where the sheriff is satisfied that:

• the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
• no other means provided by or under the 2000 Act would be sufficient to enable the adult's interests to be safeguarded or promoted,

he or she may grant the application.

1.34 Under section 58(4), where the sheriff grants the application he/she shall make a guardianship order appointing the individual or office holder nominated in the application to be the guardian of the adult. This can be for any period including an indefinite period, but 3 years is mentioned in the section. Therefore if a period other than 3 years is wanted, the applicant will have to make a case for this.

Having regard to previous orders

1.35 Under section 58(2), the sheriff must have regard to any intervention order or guardianship order which may have been previously made in relation to the adult, and to any order varying, or ancillary, to such an order.

Possible reduction to intervention order

1.36 Under section 58(3), where the sheriff is satisfied that an intervention order would be sufficient to meet the purpose for which guardianship is sought, he/she can make an intervention order instead of a guardianship order. It should be noted that the sheriff does not have the reverse power i.e. to change an intervention order to a guardianship order where he/she feels the powers requested are inadequate. The applicant would need to start the application process again.

Authorising the supervision of proxies

1.37 The courts can authorise local authorities to supervise welfare attorneys and welfare interveners.

Replacement or removal of a guardian by the sheriff

1.38 Under section 71 of the 2000 Act, the sheriff, on an application made to him/her by an adult subject to guardianship or by any other person claiming an interest in the adult's property, financial affairs or personal welfare, may:

• replace a guardian by an individual or office holder nominated in the application if he or she is satisfied, in relation to an individual that he or she is suitable for appointment;
• remove a guardian from office if he or she is satisfied:
  • that there is a substitute guardian who is prepared to act as guardian; or
  • in a case where there are joint guardians, that the remaining guardian; or
  • guardians are prepared to continue to act; or
• recall a guardianship order or otherwise terminate a guardianship if he or she is satisfied:
  • that the grounds for appointment of a guardian are no longer fulfilled; or
  • that the interests of the adult in his or her property, financial affairs or personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship.

Intervention orders and guardianship in criminal proceedings

1.39 Guardianship and intervention orders may be made by the criminal court as a disposal for those who have been found guilty of committing an offence under amendments made by the 2000 Act to the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). The evidence required for making such an order will be the same as under the 2000 Act, i.e. it will be made for the protection of the individual's personal welfare and will require 2 medical certificates and a report from an Mental Health Officer ( MHO) or the Chief Social Work Officer ( CSWO). However, an order cannot be made under the 1995 Act if there is already one in place with the same powers under the 2000 Act. (For further details see chapter 6 paras 6.77-80.)