Delegation of Local Authority Functions: Mental Health (Care and Treatment) Scotland) Act 2003 and Adults with Incapacity (Scotland) Act 2000
This consultation seeks views with regards to the delegation of functions in 2 specific areas, these being Mental Health Officer ("MHO")functions under the Mental Health (Care and Treatment) (Scotland) Act 2003, and Local Authority ("LA") functions under the Adults with Incapacity (Scotland) Act 2000 required in relation to the health and social care integration proposals.
PART 3: DELEGATION OF FUNCTIONS UNDER THE 2000 ACT
Background
25. Adults with incapacity are adults over 16 who lack capacity to take decisions for themselves. The main legislation in this area is the Adults with Incapacity (Scotland) Act 2000. Under the 2000 Act, local authorities have a number of functions - these are set out below. In the main these functions relate to welfare issues. There is also a statutory Code of Practice issued by the Scottish Ministers under section 13 of the 2000 Act in respect of local authorities exercising functions under the Act.
| Section | Function |
|---|---|
| 10 | To supervise guardian with functions relating to the personal welfare of an adult |
| 10 | To supervise a welfare attorney or intervener when ordered to do so by the sheriff |
| 10 | To consult the Public Guardian and the Mental Welfare Commission on cases or matters relating to the exercise of functions under the 2000 Act in which there is, or appears to be, a common interest |
| 10 | To receive and investigate any complaints about the exercise of functions relating to the welfare of an adult with incapacity by a welfare attorney, a guardian or an intervener |
| 10 | To investigate any circumstances made known to a local authority n which the personal welfare of an adult with incapacity seems to be at risk |
| 10 | To provide information and advice to proxies (i.e. welfare attorneys, guardians and interveners) exercising welfare functions under the 2000 Act |
| Section | Function |
| 53 | To apply for an intervention order where it appears to the authority that such an order is necessary for the protection of the property, financial affairs or personal welfare of an adults and no such application has been made or is likely to be made |
| 57(2) | To apply for a guardianship order where it appears to the authority that the adults lacks capacity: no other means under the 2000 Act would be sufficient to protect the property, financial affairs or welfare of an adult and no such application for a guardianship order has been made or is likely to be made |
| 57(3) | Where an application is made for a guardianship order which covers welfare matters, a local authority mental health officer must provide a report, in the prescribed form, on the general appropriateness of the order sought and on the proposed suitability of the proposed guardian. Where the welfare of the adult is in jeopardy only because of an ability to communicate, the report is by the Chief Social Work Officer rather than the Mental Health Officer |
| 53(4) | Where an application is made for an intervention order which covers welfare matters, a local authority mental health officer must provide a report, in the prescribed form, on the general appropriateness of the order sought and on the proposed suitability of the proposed intervener. Where the welfare of the adult is in jeopardy only because of an ability to communicate, the report is by the Chief Social Work Officer rather than the Mental Health Officer |
| 59 | To act as a welfare guardian where no-one else is applying to do so |
| 73 | To recall (at their own instance or on the application of any person claiming an interest) the personal welfare powers of a guardian |
26. As the legislation currently stands none of these local authority functions are capable of delegation to Health Boards. However, it may be that where a Local Authority and Health Board agree in the context of integration of adult health and social care (for example already occurred under the Highland Project between Highland Council and NHS Highland), then it would be more appropriate for Health Board staff to perform some of the duties currently carried out by a local authority, under the 2000 Act.
Contact
Email: Ian Nicol
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