The Adults with Incapacity (Scotland) Act 2000: Learning From Experience

THE Adults with Incapacity (Scotland) Act 2000: LEARNING FROM EXPERIENCE

Chapter Three implementing the act

Introduction

3.1 This chapter sets out the objectives of the implementation element of the project, describes the processes used to gather information, identifies policy and practice issues emerging for stakeholder groups, and includes their suggestions for making improvements. The dynamic nature of the context within which the consultancy operated is again emphasised here. Some issues raised early in the life of the project have proved to be transitory, an inevitable product of any new legislation. However, experience suggests that further consideration should be given to a range of issues affecting both access to the legislation and its operation. Regular reporting by the project has enabled the Scottish Executive to respond at an early stage to those issues where improvements could be made through non-legislative means.

3.2 Six key objectives were originally identified for the 'implementation' element of the consultancy. These objectives were not mutually exclusive and informed one another:

• to review the information and support available to those interacting with the Act;

• to identify issues arising from the experiences and views of users and potential users;

• to inform improvements in practice and the law;

• to provide a source of assistance and help to resolve difficulties or queries related to the operation of the Act;

• to review the codes of practice for Parts 2, 3 and 6 of the Act and the code for local authorities in the light of insights into the early implementation phase of the Act, making detailed proposals for revision;

• to contribute to the National Implementation Steering Group (see 1.28).

PROCESS

3.3 The intention of the first phase of the consultancy was to gather feedback from the experiences of key stakeholders. A comprehensive database of organisations and services that interact with the Act, or have the potential to do so, was established. The following three categories of interest formed the basis of an extensive network of contacts (see Appendix 2), which served as a channel for identifying emerging issues:

• potential beneficiaries of the Act (service users and carers) and organisations representing their interests;

• agencies and individuals with operational responsibilities under the Act, for example, financial institutions, solicitors, medical practitioners;

• agencies with duties under the Act, for example, local authorities, the Mental Welfare Commission, the Office of the Public Guardian.

Working with the network

3.4 A number of different ways were used to seek feedback from stakeholders. A news bulletin and posters were sent out to user and carer organisations, asking them to disseminate information about the project and to encourage individuals to get in touch to discuss their experiences of using or attempting to use the Act. The bulletin included an invitation from the project leader to meet with groups of service users and carers or their representatives. This approach produced a positive response and the project leader (who was responsible for the implementation phase) attended a number of meetings with groups of carers as well as with independent advocacy staff.

3.5 Similarly the project was invited to meetings with professional bodies such as the Law Society of Scotland, the MWG, OPG and Sheriffs Association. Meetings were held with individuals in relevant positions working for financial and legal bodies. Opportunities were also taken to encourage feedback from participants in conference workshops and training sessions led by the project leader.

3.6 In addition to the formal meetings and training sessions held, over 110 individuals from across the networks contacted the project either by letter, e-mail or telephone. Twenty per cent of these contacts were from carers seeking help with complex situations or wanting to report difficulties they were experiencing, particularly in relation to financial or welfare guardianship applications.

3.7 The purpose of the evidence gathering in the implementation activity of the consultancy was not to systematically collect quantitative data that would provide the basis for any statistical analysis. It was, instead, exploratory: engagement, in different contexts and at different levels, with stakeholders facilitated ongoing discussion and offered channels for the sharing of people's reactions to, experiences of, and thoughts about the way the legislation was operating.

3.8 The issues for implementation that are discussed in this chapter are also informed by the review of information, support and training available to stakeholder groups and by the review of the codes of practice. This information, in turn, informed the research programme.

Review of information and support

3.9 The review assessed the range, availability and accessibility of information in all its formats (written, audio/visual, websites, etc) and other information and support mechanisms available to different groups of users or potential users. Issues arising from the review are outlined at the end of this section.

3.10 It is recognised that the effective implementation of the Act requires large numbers (indeed thousands) of professionals to have a general awareness of the Act and to understand the responsibilities of their agency and their own roles. This includes social workers, health professionals, lawyers, sheriffs, officers of the court, police, bankers and financial advisers. In addition, a large number of statutory and voluntary bodies provide information and advice services, with staff and volunteers who need to have an awareness of the Act and its implications for those seeking help. Identifying and meeting the different levels of knowledge and specialist skill required has proved to be a difficult and complex task to accomplish and presents an ongoing challenge.

Published information

3.11 Published information on the Act comes in the following forms.

Official documentation:

• the Act, Regulations and Codes of Practice;

• general information leaflets about the Act, summaries of different parts of the Act including one for doctors and another for service users, and other publicity materials;

• guidelines and accompanying application forms published by the Office of the Public Guardian and a 'DIY' application pack on Part 6 produced by the Scottish Executive Justice Department;

• the AWI website, which includes all the forms.

Professional practice guidelines:

• for specific groups, such as lawyers (for example, the Current Law Statutes asp4, Adults with Incapacity (Scotland) Act 2000 and Ward 2003);

• guidance produced by local authorities and NHS boards for staff.

Information for lay people:

• guidance and information produced by specialist voluntary organisations.

Articles:

• bulletins produced for professionals (for example, Mental Health Officers' Bulletin and the Journal of the Law Society of Scotland).

Websites

3.12 The Scottish Executive's website is the main source of information about the Act. A major reconstruction was carried out in February 2003 by a member of the consultancy team, based on an analysis of the needs of users and potential users of the site. A key objective has been to ensure that the site is 'user friendly' for the non-professional. New sections were added to the website on 'How to plan your own future' and 'How to help a friend or relative who is mentally incapacitated', along with updated links and other guidance. The review of the Codes of Practice identified the need for guidance on specific topics, which would be placed on the web and cross-referenced in the codes.

Review of training opportunities

3.13 The consultancy carried out an overview of training activities, which took place during the first two years of the legislation (up to May 2003) and attempted to note training opportunities available since then.

3.14 To address training needs, the Executive supported several strands of activity:

• providing additional funding for local authorities to implement the Act. Most local authorities have now appointed a lead officer with responsibility for training;

• commissioning four regional, multi-disciplinary seminars based on a 'cascade' model of training and a training resource pack produced for participants and available on the web;

• organising a one-day training event for medical practitioners and deans of faculties;

• organising a one-day training seminar for nurses;

• producing a video aimed at medical practitioners;

• producing a series of training modules targeted to local authority staff. Some of this was designed for use in shared training between health and social care professionals and training modules are available on the Scottish Executive website and on CD ROM.

Specialist training provided by other institutes and agencies

3.15 The OPG regularly runs training open days on the financial provisions of the Act for lay people, lawyers, health and social care professionals, and provides training to a wide variety of organisations, including carers groups. The Judicial Studies Programme for sheriffs covers the Act and includes input from the Chief Medical Officer's representative on medical and ethical issues arising from Part 6. The Law Society of Scotland, Central Law Training, and individual firms have provided training for the legal profession internally. A range of training opportunities has been provided, by the BMA and other bodies, for general practitioners, hospital-based acute teams, dentists, dental students, and nurses in care homes.

3.16 Generic one-day courses have been provided for advice and helpline staff by the Legal Services Agency. A number of voluntary organisations organise training days for their own staff and volunteers.

3.17 The consultancy explored the availability of information and training within the banking and finance sector and was only able to identify one initiative. It lacked the capacity to find out about the availability of information and training on the Act for the police or within the prison service, although these would relevant areas to explore, given that adults with incapacity may become involved in these.

3.18 The consultancy also could not review input on the Act within undergraduate or specialist training for social workers, doctors, nurses and lawyers. Input on mental health legislation as well as on AWI will be an important component for all professionals who intend to work with vulnerable people in the community. A number of voluntary agencies organise awareness-raising and training days for adults and carers who may be potential users of the Act.

3.19 It should be noted that contact by the consultancy with various agencies heightened their awareness of the need to know more about the Act and resulted in the direct provision of training by the project leader. This experience enriched the insight of the project into the specific training needs of staff providing specialist services for groups of adults with rare conditions, such as Huntington's disease, as well as for medical practitioners more generally involved in assessing capacity.

Support and advice services

Services for the public

3.20 The OPG provides advice and support to those enquiring about or applying for financial powers. (A small pilot was also run to offer support to guardians and interveners in their duties.) The Mental Welfare Commission provides advice on the use of welfare provisions under the Act as do social work departments within local authorities.

3.21 The Scottish Executive receives queries, some dealt with directly, others fielded. One remit of the consultancy was to address complex enquiries, taking referrals from the Executive.

3.22 A number of specialist voluntary organisations provide direct support and advice to non-professionals, including Citizens Advice Scotland, ENABLE, Capability, and Alzheimer Scotland's 24-hour free-phone Helpline. Solicitors are also a key source of advice for families, especially when a family member is no longer able to manage their financial affairs.

Support for professionals

3.23 The main source of information and support within local authorities is the AWI implementation officer; MHOs and the legal departments of local authorities are further sources. Most local authorities have produced their own guidelines and procedures as have NHS Boards.

Review of Codes of Practice

3.24 The function of codes of practice are to:

• explain what is in the legislation in non-legalistic language;

• set out what that means for those who have duties under legislation;

• provide guidance on how these duties are to be carried out;

• provide forms/model letters/case studies.

The Codes of Practice provide the main tool for informing users of the Act about how the provisions of the legislation are to be put into operation. A key component of the implementation element of the consultancy was to review the codes of practice for local authorities and for Parts 2, 3 and 6, in light of insights gained during the early implementation of the Act, and to make detailed proposals for revisions as appropriate. Priority was given to reviewing the local authorities' and Part 6 codes of practice.

3.25 A review group was convened and met five times (membership at Appendix 3). The expertise brought to the project by members of the group provided a valuable source of information about how the Act was working. The review identified general issues in relation to all the codes, and specific issues in relation to each of the codes.

Presentation

• layout and language - to make the codes more 'user friendly'

• headings that identify guidance as for specific professionals or lay persons

• the provision of simple summary booklets (with information produced in a range of formats)

Content

• further good practice guidance needed on specific topics

• the rationalisation of complex procedures through changes to regulations

• interface issues with other parts of the Act, in particular for Parts 4 and 5

• interface issues with the Mental Health (Care and Treatment) Scotland Act 2003

• areas for policy clarification and/or changes to the Act

3.26 A report setting out detailed suggestions for improvements to the codes of practice was presented to the Justice Department for consideration. Local authority representatives on the Review Group brought to the exercise their rich experiences of where difficulties had arisen for practice, either because of lack of clarity in the codes, or because of the unintended consequences of regulations and the legislation. Some of the key issues identified from practice are outlined later in this chapter. Where there is clear evidence of the need for change, and where these could be achieved relatively quickly (because of their non-legislative nature), consultations on proposals have already been taken forward by the Scottish Executive.

3.27 Local authorities have produced their own protocols and guidelines to support the use of the codes and a number of these documents were included in the review process. This helped to highlight differences in the operation of various aspects of the Act between authorities.

Issues emerging from the Service user and carer Network

Accessibility

Lack of publicity

3.28 In 1999 it had been estimated that there were 100,000 adults with incapacity, and their carers (Scottish Executive, 1999), who might benefit from the provisions established under the legislation. However, initial and subsequent publicity has been limited and this factor will, inevitably, have an impact on uptake. One significant indicator is the uptake of intromission with funds, a provision designed to benefit many thousands of adults with modest means, which has been unexpectedly low. Although a number of factors will affect uptake, an awareness that the Act exists and how it can help, will always be key to its use. Currently, it is not at all clear how an ordinary member of the public would begin to find out about how the Act might help them and their family. More public 'sign-posts' are needed.

3.29 It was suggested to the project that a public information video or DVD could be produced about the Act and made widely available with an accompanying booklet (as for the Incapacity Act in New Zealand). Comments received from across the networks suggest that a rolling programme of public information could help to ensure that those who may benefit from the Act know about it. The local authority code of practice suggests that councils, in partnership with health and other agencies, have a key role in publicising the Act.

Legislative issues limiting take-up: Intromission with funds

3.30 Factors affecting uptake

• a major problem preventing uptake is that an adult has to have a pre-existing bank account. This excludes very large groups of people including adults with learning disability as they come of age and many older people who have chosen not to open an account.

• only private individuals are able to intromit with funds. This has the impact of excluding adults who have no family member or friend willing or able to apply.

• regulations require the counter-signatory to the application to know both the applicant and the adult. This is not always possible for practical reasons, such as location.

• regulations require signatories to be from a limited class of people. This presents a problem for applicants who may have no occasion for knowing anyone in the categories listed or may not have known them for the required period of at least two years. (The Scottish Executive was consulting on widening the scope of those who can be counter-signatories to the application at the time of writing.)

• a limitation of the scheme is that funds can only be accessed from one bank account, although many people hold more than one account.

• intromission can only be for a sole named person. Where there is a joint account and the second signatory becomes incapable, then the intromitter is unable to act for both.

Costs

3.31 Under Parts 2, 3 and 6 of the Act, costs are incurred at each stage. For Part 2, these can be solicitors' fees and fees to the OPG for registration. Intromission with funds requires fees for a medical certificate of incapacity and for registration. In private applications under Part 6, costs can include solicitors' fees, medical certificate costs, and the OPG registration fee. In cases of financial guardianship they may also be required to apply for caution (a form of insurance which has to be paid annually), and to pay the OPG an annual fee for reviewing the management accounts (although this may be waived in certain circumstances). The total costs incurred in making an application under Part 6 have caused considerable dismay to private individuals and professionals alike. If orders under Part 6 are granted for a limited period (for example, three years) and a new application made thereafter, all these costs will be incurred again.

3.32 The OPG estimated that the cost of making a guardianship application was on average between 1,700 and 2,000, of which 70% generally represented fees paid to solicitors, which can vary considerably. There was a similarly wide variation in the fees charged by medical practitioners for certificates of incapacity. There was no guidance as to what GPs can charge, fees varying from nothing to 300. Any additional independent reports sought by a private individual to support an application or appeal will have to have been paid for by the individual unless they are eligible for legal aid. These figures provided a snapshot at a specific point in time and may not be reflective of costs over the longer term.

3.33 In relation to actions under Part 6, it was not possible to estimate the numbers of cases where private individuals, because of the costs that they feared might be involved, have not pursued guardianship. However, anecdotal information has suggested that the costs involved, particularly solicitors' fees may have been a barrier to private applications under the Act. The Scottish Executive produced a "DIY pack" to aid those who wish to become an intervener or guardian. (However, the experience of two carers who had taken this route was that the process was time-consuming and not easy to co-ordinate because they felt that the professionals involved did not respond well to them as lay people. A third carer reported her experience of finding the process 'straightforward.')

Bond of caution

3.34 Several private individuals and professionals informed the consultancy that they felt that caution had not been justified in their circumstances; or that it had been disproportionate to the value of the assets it was intended to protect. The consultancy was made aware of differences in the requirement for caution, but the basis for decision-making was unclear. One problem was that there were only two insurance companies that provided caution and they had set a high threshold. Another problem appeared to be a lack of clarity in the Act about the discretion given to sheriffs to dispense with caution.

Legal aid

3.35 Means-tested legal aid is available for intervention and guardianship orders under the Act. There are two stages at which applications for legal aid may be appropriate. The first is at the pre-application stage when Advice and Assistance may be applied for by the person wishing to make an application on behalf of the adult. Eligibility for Advice and Assistance is based on the resources of the person who is making the application and not the adult. Civil legal aid can be available for representation in proceedings under the Act, and financial eligibility is assessed on the resources of the adult and not the applicant.

3.36 Prior to AWI, Assistance by Way of Representation (ABWOR) had been available, without a means test, for guardianship proceedings under Part V of the Mental Health (Scotland) Act 1984. The impact of this change in the eligibility rules for guardianship applications was strongly regarded by all stakeholder groups as representing a substantial issue for the following reasons.

3.37 First, the cost involved might prevent advice being sought about an intervention under the Act. For example, the threshold for Advice and Assistance was low and could deter those whose incomes were modest: for instance, a lone, working parent, who was on income support and with no savings, but in receipt of DLA, whose 18 year old son may be incapable of managing his finances or welfare due to a brain injury, might not be entitled to legal aid.

3.38 Secondly, it has been regarded as unjust that the burden of the costs of a legal intervention to remove decision-making powers from an adult (especially in the sphere of welfare decision-making) should fall on that adult.

3.39 A specific set of circumstances has affected patients who are detained in hospital under the Mental Health (Scotland) Act 1984 and for whom welfare guardianship has been applied for under AWI. This has affected a substantial group who were being transferred from hospital into supported accommodation. Some of these patients have wanted to appeal against the application for guardianship. Under the Mental Health Act they would have been entitled to non-means tested legal aid, but under AWI that right was removed. Some had been in hospital for a considerable length of time and had accumulated savings. They were concerned that, if they appealed, they might not be eligible for legal aid and would find themselves having to meet costs of several hundred pounds. These patients were already suffering a high level of anxiety, and the financial implications of making an appeal were causing them to 'give in' against their will.

3.40 In response to all of the above issues the Scottish Executive initiated further discussions with SLAB and the Law Society of Scotland.

Infrastructure issues

Information, training and support for private individuals as proxies

3.41 Carers seeking information about interventions under the Act said that they found the printed information produced by the OPG to be clear and helpful. Few of these carers had seen the Codes of Practice, and had difficulties in obtaining information about welfare interventions. The codes encourage lay people to seek advice from their local authority, but this information, like other information for lay applicants in the codes, is not easy to find; nor is this source of support well publicised elsewhere.

3.42 Feedback from carers suggests that the quality of information and support received from statutory services and solicitors was very variable, whilst reports about specialist voluntary sector providers, such as Citizens Advice Bureaux, were consistently positive.

3.43 The majority of individual carers who contacted the project did so because they were dissatisfied with the quality of information and support they received from professional sources and wanted to inform the project. A common difficulty, reported by carers appointed as financial guardians and by the OPG, was that guardians, in many instances, had not been fully informed of their duties in advance of being appointed. Some guardians had received no briefing with regard to completing an inventory, management plan or accounts, which came as an unpleasant surprise on being informed by the OPG. The level of support often required by lay guardians from OPG staff was considerable. Some mistakes were expensive and paid for by the lay person. In one such example the parent of a child with learning disabilities wanted to make preparations for when he came of age. The solicitor recommended financial and welfare guardianship and made applications on the instructions of the parent. However, financial guardianship was inappropriate given the modest income of their son and IwF would have been adequate. The parent was dismayed to discover what was required by the OPG in terms of an annual fee for guardianship accounts, and had not been informed that this could be waived in certain circumstances.

3.44 In contrast to professionals who are appointed as interveners or guardians under the Act, there is little training and ongoing support for lay people who have been appointed as proxies. Although local authorities and the OPG have a duty to provide supervision and advice, carers have asked for informal support through a peer group or network, but none exists at present. This issue has been addressed in countries such as Germany and Austria by resourcing voluntary agencies to provide training and support for lay guardians. In some US states short courses on 'good practice' are provided for lay guardians.

Gaps in information, independent support and legal representation for the adult

3.45 Independent advocacy agencies have exposed a serious gap in the provision of information for adults about their rights under the Act and particularly in relation to applications under Part 6. In one situation, a hospital based advocate described her search for information on behalf of several patients who wished to appeal against applications for welfare guardianship by the local authority. The advocate could find nothing in a suitable format to explain the rights of the adult and what they could do if they wished to make an appeal.

3.46 A number of different practice issues have also emerged in relation to how far adults are enabled to have a voice throughout the process, especially in relation to applications being made under Part 6. An issue raised by independent advocacy services and carers groups was the confusion that seems to exist around who is to help the adult have a voice or understand what is going on in court and who is to be the adult's representative. There appeared to be a lack of clarity around the roles of independent advocates, safeguarders and curators ad litem as well as around how these different forms of support might be accessed to support the adult.

Processes and procedures

The court system for hearing applications

3.47 There is nothing in the Act that stipulates whether hearings should be held in open court or in private, but there is a widely held expectation that such sensitive matters should be heard in closed court. Carers, other family members and adults have been distressed to find that this has not always been the case. Applicants can request that the hearing is in private, but few will know this. A note on this issue has been circulated to sheriffs.

3.48 The consultancy was contacted by over twenty carers who had been involved with guardianship applications. Each carer volunteered their views on the court process, describing it as being extremely stressful and in many instances 'a nightmare'. The majority of these carers were pleased with the outcome, and complimented the sheriff and other professionals involved, but objected strongly to the court environment with its associations with criminality. In several instances, it was also reported that the adult felt they were being taken to court because they had 'done something wrong' and it was hard to explain why they had to go there. (It is interesting to note that in Belfast, to reduce the stresses induced by the environment, hearings take place in a less formal setting within the court structure. In England, hearings before the Court of Protection take place in a normal meeting room.)

3.49 In the long term, consideration could perhaps be given to extending the function of tribunals under the Mental Health (Care and Treatment) (Scotland) Act 2003 to hearings under AWI. Several voluntary organisations have proposed the use of tribunals for hearings under both pieces of legislation. Orders under both may be necessary for some adults: to go through two separate processes would be stressful for the adult and their family, and a poor use of resources.

Interface with financial institutions

3.50 Experiences of poor co-operation from some financial institutions were reported. Some banks, both north and south of the border, were refusing to accept the authorisation of certificates that give powers for the attorney, withdrawers and financial guardians, to manage adults' bank accounts. Carers were having to 'shop around' to find a bank willing to accept the certificate. Often this has reflected a lack of awareness amongst staff at branch level and the OPG has intervened to support individuals confronted by such difficulties. The OPG also issues a leaflet to IWF clients along with their certificate entitled, 'Intromit with Funds Scheme - A guide for fundholders', which users can take to the bank when setting up accounts. However, at a strategic level, there appear to be interface issues between banking law, the Act and other legislation, resulting in adults being prevented from having access to their own funds. The Scottish Executive has been discussing these issues with the banking representatives.

3.51 The OPG has also found that there are complex cross-jurisdictional issues that impact on banking.

3.52 In determining the appropriate level of financial intervention required for managing the funds of an adult, it is necessary to have some knowledge of their income and assets. However, the banks' duty of confidentiality means that they cannot issue such information without a court order or the account holder's written consent, which the adult may be incapable of providing. The OPG has found that a number of guardians have been appointed where IwF would have been more appropriate, and the court has not been informed of the adult's means in advance of an order. The prospective guardian would have difficulty in obtaining this information from the banks, unless there is a change in the legislation to facilitate this. It is only once an inventory of the estate is established that this situation becomes apparent. By that time, an adult, sometimes of modest means, has had to bear the costs of the court proceedings and related guardianship fees.

Issues for agencies and Staff with operational responsibilities and duties under the Act

Policy issues

3.53 The circumstances in which it is necessary to invoke the Act was by far the most complex issue reported by local authorities, through ADSW and the Social Work Legal Group, as well as by implementation officers within local authorities and by the MWC. The issue is one of legal interpretation: was it originally intended that the Act should be used every time a major intervention is required for the benefit of the adult who is unable to give informed consent, or only, for example, when there is a dispute or conflict of interests? It is the stated policy of some local authorities always to invoke the Act in order to move an adult from hospital to another care setting. Other councils will only do so where the adult or family is resisting such a move. Disagreement on this fundamental point has been the most controversial aspect of the Act.

3.54 A focus of dissent has been around the primacy of the principles that underpin the Act. One body of legal opinion has regarded the principles, in the first instance, as a tool in the care review process to help determine whether the Act is the only means by which benefit to the adult can be achieved; whilst another body of legal opinion has regarded the principles as applying only to formal interventions under the legislation.

3.55 The Scottish Executive has sought to clarify the position in collaboration with the Mental Welfare Commission, who, at the time of writing, were preparing a discussion paper on 'Authorising Significant Interventions for Adults who Lack Capacity'. Following legal advice, the Executive has written to authorities on this matter (SWSI 2004).

Examples of the impact of lack of clarity about when to invoke the Act

• Delayed discharges of several months have been caused whilst some local authorities have made applications for welfare guardianship in order to move adults to a more appropriate care setting in the community. This procedure has even been made in cases where there has been full agreement on the benefit of the move and where there is compliance. Such delays have proved to be to the serious detriment of the adult.

• Further examples of a lack of clarification about whether to use the Act concern the signing and termination of tenancy agreements. Some housing associations are applying for a welfare or financial intervention order so that a tenancy agreement can be signed. Other housing associations do not consider it necessary to intervene under the Act. Some have concluded that tenancy agreements need to be simplified and it may be a matter of communicating with the adult in terms they can understand. The view of the OPG has been that, generally, virtually all tenancy agreements have both a financial and welfare elements and, in most cases, because these are ongoing, an application for financial guardianship may be more appropriate.

• Another issue identified by the Social Work Legal Group is around the termination of a council tenancy. Some local authorities have taken the decision that an intervention order would be too cumbersome, expensive and time consuming, so have resorted to using 'abandonment' legislation to terminate a tenancy agreement in situations where it is clear that the person is unfit to return home from hospital. However understandable, the use of abandonment legislation is inappropriate and the recent Scottish Executive guidance may help to resolve this issue.

Gaps in the provision of emergency measures

3.56 The lack of emergency measures within the legislation to protect adults with incapacity, who may be in imminent danger of abuse or of neglect has been raised by the local authorities social work legal advisers group, by the MWC, the Codes of Practice Review Group and ADSW. Whilst the legislation has provision for an interim guardianship order, this cannot be achieved without a full summary application and supportive report being made to the sheriff court. Even this can take several days to be processed and a decision reached. Local authorities and health boards have been using emergency provisions under the Mental Health (Scotland) Act 1984 and may continue to do so under the Mental Health (Care and Treatment) (Scotland) Act 2003. It was suggested by a range of voluntary and statutory stakeholders that one solution could be through vulnerable adults legislation.

3.57 ADSW has suggested that the legislation be amended to allow for the provision of short-term interim guardianship orders (for example, for 14 days) before a formal application for guardianship is made.

Unauthorised and covert removal

3.58 The project was made aware of three cases where the unauthorised and covert removal of an adult had taken place. Whilst such cases are rare, they are inevitably complex and involve intense family conflict, and collectively expose a series of issues, relating to the legislation, processes and procedures, as well as to practice. In each case the adult was suffering from severe mental impairment but had not received an assessment of incapacity under AWI. The primary carer experienced considerable distress in each case, which was exacerbated by the length of time it took to resolve matters, and the financial costs involved. 7 The cases are examples of when the Act has not been used, but should have been.

3.59 The agencies involved in these cases have analysed the circumstances and outcomes very closely in order to learn lessons for practice and to inform improvements to the process and legislation. The MWC refers to 'lessons learnt' in its Annual Report 2003-2004 (forthcoming). Lessons relate to the need for emergency provisions to intervene at a very early stage; practice guidelines for dealing with conflicts of interest where there are two competing applications for guardianship and two different local authorities involved; guidelines for interagency working with the police; and advice for sheriffs with regard to interim orders and timescale issues.

Gap in the system for the provision of a guardian or intromitter of 'last resort'

3.60 Local authorities reported that there was a significant number of individuals who lacked the capacity to manage their own affairs, but either had no family member or friend to manage their finances for them or anyone willing and able to do so. Local authorities have a duty under the Act to put in place appropriate measures when these are necessary and no one else is doing so, but they are disallowed from becoming financial guardians. This is problematic, particularly where the adult has only moderate assets or may be in debt as a direct result of their incapacity. Some authorities have tried to make an application for a financial intervention order (for which local authorities can apply), but the courts have sometimes rejected these as inappropriate because the powers sought were not of a 'one-off' nature. In many situations the only solution open to local authorities has been to nominate an independent solicitor as financial guardian, and whilst expenses can be claimed back from the adult's estate, in many instances this will be too small and the local authority will have to subsidise costs. ADSW have reported that this has caused a significant resource difficulty for local authorities and led to patchy provision across the country.

3.61 The number of adults affected is hard to determine but a survey of local authorities suggests that in larger authorities there may be between 50-75 cases a year, and in smaller authorities up to 25 cases a year. The consultancy reported on this issue in May 2003 and put forward three possible solutions, two of which would require legislative changes:

• local authorities to be given the power to act as financial guardians;

• the OPG to be appointed guardian of last resort (a solution proposed by the Scottish Law Commission in its original 1991 proposals).

A third, non-legislative solution could be for the provision of a low cost service by the voluntary sector. Because it is adults with low to moderate means that need the support of a 'guardian of last resort', it is unlikely that any of these options would be fully self-financing so public subsidy would be required. This issue is under consideration by the Scottish Executive.

Sale of property

3.62 The OPG highlighted two issues in relation to the duties of financial guardians under the Act.

• Section 61 states the requirement on guardians to register heritable property with the General Register of Sasines or in the Land Registry of Scotland. This is costly, time- consuming and offers no safeguard to the adult, as the Keeper's office does not have a remit to check that the guardian has consent in principle and to price.

• Schedule 2 6(1). The consent of the Public Guardian is required, in principle for the sale of a property and following that, consent on the price. Clarity is required on the phrase 'use for the time being as a dwelling house for the adult' as many guardians have chosen not to seek consent to principle and price on the basis of this phrase. They argue that the requirement does not apply because the adult is no longer living in their house having been moved to a care home. This interpretation removes a safeguard from the adult.

Practice issues

Training

3.63 Training and good practice guidance underpin the effective operation of the Act. The Scottish Executive's early approach to information dissemination and cascade training, with four multi-disciplinary regional seminars in 2001, proved to be partially successful. It worked very well for staff with specific social work responsibilities under the Act, such as Mental Health Officers; and it worked well in some areas where a strategic approach was developed to the provision of multi-disciplinary training. However, such action was limited in many areas.

3.64 It was recognised, especially by MHOs and CPNs, that the introduction of single shared assessment and multi-disciplinary working under the Joint Futures agenda should provide a strong incentive for inter-disciplinary training on AWI. A rolling programme of training could help to ensure all health and social care staff, who are likely to be supporting adults with incapacity and their carers, have the knowledge and skills they need.

3.65 The project led a number of training sessions and workshops over a period of 18 months for health and social care professionals delivering front line services. Those sessions revealed that the majority of participants had only a limited awareness of the Act and were unfamiliar with the Part 1 principles. Those who had received some training, typically a day or half day, found it to be too broad to help them to know what to do in specific cases. A number of social workers were not aware that there was an Implementation Officer within their department from whom they could seek advice.

3.66 Medical practitioners have responsibility to carry out an assessment of incapacity that is decision-specific and to sign certificates of incapacity under Parts 3, 4, 5 and 6 of the Act. The codes of practice advise that the assessment process should be inter-disciplinary and involve the adult, the adult's advocate (if there is one) and their carer as far as possible. Medical practitioners, and GPs in particular, have expressed a lack of confidence in their skills and abilities to assess incapacity. Those who had seen the GPs' leaflet and video considered that they provided a good overview, but did not help to inform their practice. A number of GPs who responded to a letter from the consultancy asked for more about the Act because they said they had not heard of it, even although every surgery had been sent an information leaflet. This finding is supported by recently published research on Part 5 (Drinkwater et al 2004). GPs have consistently requested a flowchart for quick reference (though one is provided inside the s47 certificates pad) and guidance on how to make an assessment of incapacity that is decision-specific. The need for the latter has also been identified by the Codes of Practice Review Group and the addition of a professional guidance page to the AWI website, which would include issues such as assessing capacity and communication, was suggested.

3.67 Concern was expressed that attention to the Act may be superseded by the Mental Health (Care and Treatment) (Scotland) Act 2003 which is to be fully operational by 2005. There are important areas of overlap, which will cause confusion if staff are unfamiliar with AWI provisions.

Good practice issues

• Assessing capacity and supporting communication

3.68 The need for further guidance on the assessment of incapacity and communicating with the adult emerged from at least three different sources: the review of information and training; the review of the codes of practice; and feedback from stakeholder groups, especially the medical profession. The Codes of Practice Review Group was concerned that the revised codes should make explicit the connection between optimising communication with the adult and the assessment of capacity.

3.69 These communication and assessment issues were of particular concern to providers of services for people affected by less common neurological conditions. They felt that many of the professionals involved with assessing capacity failed to understand how the condition affected an adult's decision-making powers. For example, the Huntington's Association for Scotland felt that the decision-making capacities of those with Huntington's disease were frequently over-estimated, leading to inappropriate decision-making; similar comments were made by PAMIS, a voluntary body supporting adults with severe and complex learning disabilities. Alzheimer Scotland reported that in some instances the decision-making abilities of people with dementia were under-estimated because professionals involved with assessment lacked the necessary communication skills. These issues have strong implications for guidance and training.

3.70 Good practice issues with regard to communication and assessment of capacity are viewed as fundamental to advancing Single Shared Assessment and the Joint Future agenda for the most vulnerable community care users. The application of the Part 1 principles is entirely consistent with the 'person-centred' focus of NHS and Joint Future policies. Good practice guidance and training should help practitioners in health and social work to make these crucial cross-policy links.

3.71 The MWC expressed its concern that the Act does not require any formal assessment of the adult's capacity before a welfare POA can be activated. The granter has the choice of building in the safeguard of a 'springing power', a clause stipulating the events which must occur before the power is authorised (for example, that a doctor known to the granter must assess their capacity). If there is no springing power then it is left to the attorney to decide when the adult lacks capacity and, therefore, when to take over decision-making within the powers granted. It is the view of the MWC that such provision places too great a responsibility for the assessment of incapacity on a lay person. The Commission has suggested that the Act should be changed to require a certificate of incapacity before a welfare power can become operable. Others have argued that it should be enough to encourage granters always to include the safeguard of a springing clause. The Act does provide a retrospective safeguard in that anyone with an interest, who suspects abuse, can instigate an investigation by contacting the local authority or MWC with regard to a welfare attorney or the OPG with regard to a continuing attorney.

• Intimating /notifying the adult

3.72 Every adult subject to an application for an intervention under AWI must be 'intimated', that is notified, and have their rights under the legislation explained to them. Only in rare circumstances would this not be appropriate because of possible serious risk to the health of the adult. However, there is an absence of guidance about how this should be carried out in different settings, for example, good practice for nurses on NHS wards, or what should happen when the adult lives alone.

• Operation of the principles

3.73 The extent to which agencies and individuals operating under the Act have regard for the principles and their application is a major test of whether the legislation has been working as intended. One view that emerged from MHOs was that the Act and its principles had influenced a marked improvement in multi-disciplinary assessment and care planning for adults with incapacity. It was felt that the principles were beginning to be applied as a matter of good practice, in advance of any decision to use the Act.

3.74 Sheriffs have a duty to ensure that powers applied for are appropriate to the needs of the individual. The MWC has a duty to review all summary applications and accompanying certificates for welfare guardianship and provide comment as appropriate to the sheriff. The MWC and some MHO reports have observed that it is not unusual for applications to request powers that are in excess of what the evidence presented has suggested would be needed to benefit the individual. There may be a number of reasons for this. For example, solicitors may not have the necessary background information to help them make an appropriate application (for instance, case conference notes); or they may feel it is in the best financial interests of their client so they do not have to return again to request more powers in the future, especially where the adult may have a degenerative condition. However, it may also be indicative of a lack of appreciation of the Part 1 principles and an understanding of the rights of the adult under the Act.

3.75 The Mental Welfare Commission, as part of their monitoring processes, has recorded concerns expressed by MHOs that, in some instances where they had made a strong recommendation against a guardianship application or the extent of the powers applied for, the sheriff had granted the application without hearing further evidence from the Mental Health Officer. The MHOs had expected to be called as a matter of course in such circumstances. The MWC has advised that MHOs should make an advance request to be heard by the sheriff; and that such advice should be disseminated through the MHOs' bulletin and in the revised code of practice.

3.76 The MWC has also noted that it has been common for interlocutors not to state the length of the guardianship order. Section 58 (4) of the Act states that 'an order appointing an individual or office holder nominated in the application to be guardian for 3 years or such other period (including an indefinite period) as, on cause shown, may be determined.' If cause is not shown, the Act specifies a three-year period of appointment. However, the absence of any specified time could be confusing for the adult and guardian. If the decision had been for the guardianship order to be ongoing then this should be stated with reasons given.

• Habitual residence and cross-boundary issues

3.77 Under section 76 of the Act, responsibility for the guardianship of an adult passes from one local authority to another when the adult's place of habitual residence changes to another local authority area. This only applies when the guardian is the Chief Social Work Officer. The Act does not define 'habitual residence' and the code of practice for local authorities restates the legislation without shedding further light. In addition, there is no definition of the length of time that the adult has to be resident in an area for them to 'habitually' resident. Community care legislation includes the concept of 'ordinary residence' for funding purposes, but it cannot be assumed that habitual residence is the same. ADSW has suggested that a local authority protocol be established for where habitual residence is an issue, and a draft has been produced for consultation with local authorities.

• Dealing with conflicts of interest

3.78 Whilst sections 5.51-5.22 and 6.69-6.70 in the local authorities code of practice refer to considerations to progress action where there is a conflict between different persons with an interest, there remains a degree of confusion around how best to progress in circumstances where, for example, an application is being made by more than one family member; there is a dispute between family members regarding an application; independent legal advice is contradictory to the advice of the local authority; or there is a disagreement between relatives and the local authority about the need for guardianship where a private application is being made. Clarification is needed in the code of practice about the course of action an MHO should take in such circumstances. Further clarity is also needed on what should happen in those circumstances where a private individual is making an application for guardianship at the same time as the local authority (for example, in relation to who is to be the MHO for the private applicant).

• Responsibility of the local authority to act

3.79 The Code of Practice Review Group identified the need for advice to be provided to local authorities on when to act where there are delays and a reluctance to act by relatives where the adult is in need of protection.

Processes and procedures

Recall procedures for guardianship

3.80 Local authorities and the MWC identified two key difficulties, reflecting a change from the relatively simple recall procedure under the Mental Health (Scotland) Act 1984: that the process of recall is too complex and may deter local authorities from applying; the intimations go out too widely and are in conflict with the adult's right to privacy.

3.81 The Codes of Practice Review Group suggested that the process should be simplified through changes to the regulations and code of practice. The MWC has expressed the view that there should be a procedure for local authorities to discharge their own guardianship and that the MWC should be informed about, and have the power to object to, a proposal.

Timescales

3.82 A number of issues have arisen in relation to the timeframes for processing applications under the Act. Problems have arisen from the pre-submission phase in which the Act requires that three assessments have to be carried out and certificates submitted within the 30 day period prior to lodging the application. Two of these are medical assessments and the third is a social assessment carried out by the MHO. All three may include the views of relevant others as part of their assessment and this may take time. Feedback from some solicitors and private individuals is that they have experienced problems in receiving responses to requests for reports and co-ordinating these within the timeframe. The consequence, in respect of medical certificates, is that assessments have to be repeated and new certificates presented. One or two of the private individuals in touch with the project, who took applications forward themselves, found it particularly difficult to get professionals to respond within timeframes. In one case a carer followed the procedures in the Scottish Executive 'DIY' guardianship application pack and felt badly let down when the social work department failed to allocate a MHO to produce a report in time.

3.83 ADSW suggested that the implementation might be improved by inserting a proviso in section 57 allowing the sheriff discretion to accept reports more than 30 days old in specific circumstances.

Supervision for private guardians

3.84 Regulations require that welfare guardians and adults be visited every three months. Some carers with guardianship powers have said that they feel that such frequent visits are unhelpful and can be disruptive to the adults' education or attendance at day care. Mental Health Officers also feel hard pressed to carry out visits, especially as the numbers of private appointments is growing.

3.85 The Codes of Practice Review Group and ADSW have recommended that the supervisory period should involve a visit every six months, and more frequent visits could be carried out at the discretion of the local authority in relation to a specific case. 8

Intimation and non-compliance

3.86 Local authorities and the MWC have raised issues in relation to the intimation of applications for non-compliance orders (section 70). It has been considered that the 21 days notice required for intimation of these applications may leave an adult at serious risk. The minimum period this could be shortened to would be 48 hours. It may also be impossible to serve the intimation on an adult who has disappeared or who has been moving around from one address to another.

Use of interim guardianship

3.87 The Codes of Practice Review Group identified the need for further clarity on the use of interim guardianship orders. Multiple use during a single application had not been anticipated. The reasons for this happening are unclear and further investigation has been suggested before this element of the Part 6 code can be improved.

summary: key points

3.88 What is evident from looking at the outcomes from the various implementation activities, and the research, is the consistency of issues emerging from within and across stakeholder groups. There are of course a number of separate 'technical' issues which have been highlighted by staff in agencies with operational responsibilities and duties under the Act. Ultimately, all the issues have an impact on the quality of service provided to adults with incapacity for whom the Act was designed to benefit.

Legislative and policy issues

• Clarification on when to invoke the Act (currently being addressed by the Scottish Executive).

• Lack of automatic entitlement to legal aid for welfare guardianship applications under the Act is widely regarded as a major injustice.

• Changes to the Act and regulations to make intromission with funds more accessible.

• Many individuals with modest means have no family member or friend to intromit with funds. The Act does not allow local authorities to do so or to become financial guardians. There is a gap in the system and alternatives suggested by the project are being considered by the Scottish Executive.

• Interface issues to be addressed between banking practice and law, the AWI and other legislationas these barriers are depriving adults of access to their own funds.

• Regulations could be altered to reduce the minimum requirement for supervision visits to welfare guardians by local authorities from four to two per annum.

• Timescales for processing applications can be problematic when co-ordinating the three reports required. If one falls outside the timeframe the other two must be repeated.

• The perceived inappropriateness of the sheriff court environment points to the need for a short term solution, and longer term consideration to extend the remit of the tribunals for the Mental Health (Care and Treatment) (Scotland) Act 2003 to include AWI hearings.

• Recall procedures are more complicated and time consuming than under the old mental-health legislation. This means adults may remain on an order for longer than necessary.

• Issues arising from regulations around intimation and non-compliance.

• Issues arising from the definition of 'habitual' residence.

• Clarity required on circumstances in which the guardian must seek the consent of the OPG for the sale of an adult's property and on the price.

Information, support and training issues

• The need for a public awareness-raising strategy, incorporating action to be taken at a national and a local level so as to improve access to the Act by all those who may benefit.

• Changes to the presentation and language in the Codes of Practice to make them more 'user friendly'.

• Provision of information, support and independent advocacy for adults subject to the application for an intervention.

• The need for the provision of informal support and training for lay proxies.

• The need to include the AWI within undergraduate and postgraduate training for specific professional groups; joint training at a local level between health, social work and provider organisations with in the Single Shared Assessment and Joint Future framework to ensure that the essential links are made.

Practice issues

• Difficulties for the medical profession and others in communicating with, and assessing capacity of, adults with severe communications difficulties. To be addressed by the Scottish Executive in collaboration with others through the provision of good practice guidance and training.

• Uncertainty in how to progress where there are conflicts of interest - MHOs identified a number of circumstances in which there was confusion about how best to progress matters. Further good practice guidance needed.

• The operation of the Part 1 principles have led to improvements in multi-disciplinary assessment and care planning, however the MWC, in monitoring of Part 6 applications, revealed that the principles were not always observed, in that powers applied for and granted are often in excess of what has been assessed as needed by the adult. The involvement of solicitors, in review meetings or having access to care plans, may improve practice.

• Clarity needed on when a local authority should act under Part 6 in circumstances where the adult is in need of protection, but relatives are reluctant to do so or are delaying action.