Adults with incapacity: code of practice for local authorities

Chapter 4 The provision of community care services for adults with incapacity

ASSESSMENT, CARE PLANNING AND DECIDING HOW TO PROCEED

4.1 This guidance aims to ensure that the rights of the adult are protected. The assessment and decision-making processes, whilst rigorous, should be carried out as quickly and efficiently as possible. Unnecessary delays may put the health and welfare of the adult at risk.

4.2 The procedure applies to adults for whom major decisions need to be made and who:

• have complex and/or significant care needs; and
• may be incapable in relation to the decision/action in question (see section 1 (6) of the 2000 Act).

4.3 This guidance assumes that an adult who appears to have a measure of cognitive impairment, and for whom there are doubts about his/her ability to make major care decisions, falls within assessment and care management procedure. 2 The adult will have a needs assessment (which includes consideration of risk and vulnerability, care options and capacity issues).

4.4 Where the adult has capacity to make his/her own decisions and give consent to care arrangements, section 13ZA of the 1968 Act and the 2000 Act do not apply. If the adult has relevant capacity, then a decision by the adult to refuse services must be respected, even if no one else agrees. The only exception would be in the rare circumstance that procedures under the 2003 Act could be appropriate. For example, where the person's refusal of treatment for mental disorder puts the person at risk to themselves or others.

4.5 It is assumed that at an early stage in the assessment and care management procedure it will have been established if the person has a proxy or proxies with welfare powers or if such an appointment is in process. (This can be checked with the OPG who maintains a public register of all powers of attorney, guardians, and persons appointed under intervention orders.) The involvement of any existing proxy with relevant decision making powers will be crucial. His/her consent will be necessary before the local authority is able to provide services to the adult. 3 Where the person has a welfare guardian, the supervising officer will have role in consulting the guardian and the adult.

4.6 The local authority is not able to use the power in section 13ZA of the 1968 Act if it is aware that:

• the adult has a guardian or welfare attorney with relevant powers; or
• an intervention order has been granted relating to the proposed steps; or
• an application has been made but not yet determined for an intervention order or guardianship order relating to the proposed steps.

Clearly, the local authority does not need to act on behalf of the adult under the 2000 Act where there is a proxy with relevant powers in place (unless there are concerns about the ability or intention of the proxy to safeguard the adult's welfare - see chapter 9). The following paragraphs outline the key elements in the process of considering each case where the person lacks capacity to consent to the decision and/or action in hand and the local authority needs to act on behalf of the adult to ensure the provision of services to meet assessed needs.

4.7 Where the capacity of the adult to consent to the proposed care plan is in doubt, it will be necessary to consider how to:

• take forward decisions on behalf of the adult; and
• address any ongoing concerns about the adult's need for safeguards to be put in place.

This will require an up-to-date multi-disciplinary review. This is likely to happen at a case conference. However, where this is impractical, it will still be essential to act on all the elements of the review process outlined below. The views of all relevant parties should be sought - including the adult, independent advocate (if there is one), GP, relatives, carers, named person, proxies (with powers other than those relevant here). In many cases the involvement of a MHO would be extremely helpful.

4.8 The following procedure could be usefully employed or adapted as appropriate to circumstances.

• Preparatory meeting - the care manager or other member of the community care/discharge team should meet with the adult, his or her independent advocate (if he or she has one), and his or her carer to discuss the possible steps that might be taken. The carer should be regarded as a key partner in care 4 and will usually be the source of much relevant information to feed into the decision-making process. The meeting should also be used to provide information to the adult and carer about how the decision-making process works.

Every effort must be made to maximise the capacity of the adult to make his or her own decision, through providing information in an accessible format and using appropriate communication tools. A guide to assessing capacity has been prepared by the Scottish Government and should be referred to conjunction with this guidance. It is available at: http://www.scotland.gov.uk/topics/justice/civil/awi.

It might also be appropriate to consider if the adult could benefit from support, possibly from an independent advocate (if he/she does not already have one), to express his/her views, especially if it becomes apparent that there may be major disagreements between the wishes of the adult and others.

• Initial assessment of capacity - the care manager co-ordinating the review will have formed a preliminary view about the capacity of the adult to give consent to the proposed care plan. This will be based on direct contact with the adult, and from consultations with others as part of the assessment process. It might also be useful to request an initial assessment of the adult's capacity in relation to the area of decision-making in question, from a suitably experienced health care professional. This might be, for example, the adult's GP; psychiatrist; speech and language therapist (especially if there are communication difficulties); clinical psychologist; discharge team clinician; or possibly a nurse with the relevant assessment of capacity training. Experience has shown that this can help to inform the review and speed up decision-making.
• Multi-disciplinary review - the process, however conducted, should take the following points into account:
  • Agreement should have been reached on the care and support the individual is assessed as requiring before consideration is given to what legal authority might be used to implement key aspects of the proposed care plan.
  • The capacity of the adult must be assessed in relation to the decision in hand. Where it is agreed that the adult lacks sufficient capacity to make some or all of the decisions required, the meeting will need to consider whether authority under the 2000 Act will be necessary to implement essential aspects of the care plan to which the adult is unable to give informed consent, or whether it would be appropriate to use the powers under the 1968 Act.

4.9 In determining the course of action to take, the following key elements should be fully considered.

APPLYING THE PRINCIPLES

4.10 The principles of the 2000 Act must inform consideration in each case of the action to be followed. As well as applying to decisions under that Act, it is explicit in section 13ZA of the 1968 Act that the principles of the 2000 Act apply to whatever steps are taken by the local authority under the 1968 Act in relation to the provision of community care services to an adult with incapacity.

This involves considering:

• what actions/decisions will be of most benefit to the adult;
• which actions/decisions will be the least restrictive in terms of the adult's freedom and consistent with the benefit to be achieved;
• the past and present wishes and feelings of the adult and in doing so, supporting the person to participate in the decision-making process as far as possible, with appropriate assistance. This should include considering the benefit of involving an independent advocate;
• the views of relevant others (as far as is practical), in the life of the adult to assess whether there is agreement or disagreement on the proposed care intervention. This will include his/her carer/s, relatives, friends, proxies (with powers other than those relevant here), health and social care professionals, and others with an interest.

Local authorities should provide access to a local advocacy service for those with a mental disorder under the 2003 Act. 5

Assessment of needs and risks

4.11 Where the needs assessment gives rise to care and protection concerns, a specialist risk assessment may be needed.6 This will inform considerations as to whether an order is necessary in terms of the criteria set out in sections 53(3) and 57(2) of the 2000 Act. This may include circumstances where there is a severe family conflict about the future care of the adult, or where the adult him or herself is resisting help.

Deprivation of liberty

4.12 Consideration must be given as to whether the proposed care intervention would amount to a 'deprivation of liberty' under Article 5, European Convention on Human Rights ( ECHR). Factors to consider in assessing whether a person is or is likely to be deprived of his or her liberty are set out in Annex A (part of Annex 1). Guidance is also available from the MWC (autumn 2008). Where the conclusion is reached that the circumstances amount to deprivation of liberty, then an order will be required to ensure that such deprivation is in accordance with a procedure prescribed by law in terms of Article 5, ECHR.

Assessment of financial management arrangements

4.13 Because welfare decisions often have financial implications it will be necessary to assess whether the adult is also unable to manage his/her finances or deal with legal contracts (such as a tenancy agreement, or the sale of a house, etc.) in relation to the decision in hand. It will be essential to find out if anyone has relevant powers over the adult's property and finances. Where no arrangements are in place an assessment of the financial circumstances of the person will be needed in order to decide if any financial interventions will be appropriate. Please note that local authorities have a duty to apply for a financial intervention under the 2000 Act (guardianship or access to funds as appropriate).

Recording decisions and informing interested parties

4.14 The minute of the case conference or 'record of views' (where a review has been conducted outwith a case conference) will provide the key record of decisions taken, including arrangements for future reviews. It is essential to record the decision about which power to use to provide services and the reasons for taking this decision. In addition to the record, a formal letter should be sent to the person, his/her primary carer, independent advocate (where there is one) and relevant professionals. The letter should:

• inform them of the outcome of the case conference/review;
• confirm what care package and or actions were agreed; and
• state clearly whether or not an order is going to be sought, with reasons for the decision, and arrangements for the next review.

A copy of this letter should be placed on the adult's file.

4.15 Where the local authority has decided either to apply for an order under the 2000 Act or to use the power in the 1968 Act in order to provide a community care service or services, the person, his/her independent advocate (if there is one), anyone else providing support, and others with an interest in the person's welfare, should be given written information about their right to object, i.e. about the local authority's complaints procedure, the role of the Scottish Public Services Ombudsman, and about agencies offering independent advice, including legal advice.

4.16 People who have a right to be consulted about an intervention under the 2000 Act are:

• the nearest relative, and including same sex and opposite sex cohabitants of at least 6 months standing in the same status as 'spouse';
• named person;
• the adult's primary carer;
• 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 to be consulted; and
• any relevant others in the life of the adult who have an interest in his/her welfare or the proposed intervention.

It is only necessary to consult these people in so far as it is reasonable and practicable to do so. There would have to be justifiable reason for not doing so, for example, they have gone on holiday and left no means of contact.

The officer should try to ascertain from the adult, from family members, friends, neighbours and professionals involved if there are any relevant others who should be contacted. If so, the officer should make reasonable attempts to contact them in person or in writing.

Monitoring and review

4.17 Routine arrangements for monitoring and review of the person's care, as set out in guidance for assessment and care management, 7 will need to be put in place and followed rigorously, whether action has been taken under the 1968 Act or the 2000 Act. It should be recognised that changes may occur for the individual and in his or her relationship to the social and physical environment which could have implications for the power under which the local authority can act. Reviews should explicitly consider whether any such change affects previous decisions and in particular whether the person is or is likely to be deprived of their liberty in terms of Article 5, ECHR.

SUMMARY

4.18 Which power a local authority decides to use in each case is a matter for judgement and decision by the authority. However, the following features would be present in a case where the powers and duties contained in the 1968 Act would be sufficient to allow a local authority to move an adult to a care home or make other significant changes to care arrangements:

• there is no proxy with relevant authority and there is no application for an order under the 2000 Act with relevant powers in the process of being determined; and
• the risk assessment indicates that there are no issues that would warrant an order under the 2000 Act; and
• it is considered that the adult will not be deprived of his or her liberty under Article 5, ECHR; and
• there would be no other benefit to the adult in applying for an order.

In addition to these features, indicators that a care intervention under the 1968 Act may be appropriate would be:

• the person does not disagree with proposed action; it appears that he/she is unlikely to indicate an unwillingness to remain in the care arrangements;
• all interested parties agree with care intervention proposed.

4.19 A local authority should obtain an order under part 6 of the 2000 Act where:

• the circumstances in section 53 and 57 arise, i.e. it appears to the local authority that the adult is incapable, no application has been made for an order in relation to the decision in question, and an order is necessary for the protection of the property, financial affairs or personal welfare of the adult; and/or
• in providing the care intervention needed, the circumstances amount to a deprivation of liberty.

In addition to these features, indicators that a care intervention under the 2000 Act may be appropriate would be:

• the person with impaired capacity is opposed to the proposed course of action as far as can be ascertained;
• the carer/family members have expressed a different view to that of the person and/or the health and social work professionals involved with the needs assessment and care plan, or there is disagreement amongst professionals. In such cases, where no agreement can be reached, local authorities may conclude that the only way to protect the personal welfare of the individual would be through an application for an order and a hearing in front of a sheriff. Even where there is doubt about how convincing the evidence may be in court, where concerns remain over the capacity of the individual to protect his or her own welfare and there is such a disagreement, the matter should be placed before the court for a decision.

SEEKING DIRECTIONS WHERE THERE IS A DISPUTE ABOUT AN ADULT'S CAPACITY

4.20 The sheriff has powers under section 3(2)(b) to 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 assessment or interview be lodged. This could be a way of resolving any dispute with carers or relatives about an adult's capacity.

4.21 A local authority carrying out any of the functions conferred on it under the 2000 Act and summarised in chapter 2 of this code can make an application for directions in a case where a dispute emerges as to an adult's capacity. Such an application could ask the sheriff to rule that a medical assessment of the adult's capacity be undertaken.