Delegation of Local Authority Functions: Mental Health (Care and Treatment) Scotland) Act 2003 and Adults with Incapacity (Scotland) Act 2000

Annex A - Text of e-mail of 31 May 2012

Dear All

The Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012 (SSI 2012/65)

The Community Care and Health (Scotland) Act 2002 (Incidental Provision) (Adult Support and Protection) Order 2012 (SSI 2012/66)

I am sending this e mail out on behalf of Reshaping Care & Mental Health Division and the Integration & Service Development Division, in the Scottish Government Health & Social Care Directorates. Please find attached a briefing note regarding the Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012 and the Community Care and Health (Scotland) Act 2002 (Incidental Provision) (Adult Support and Protection) Order 2012.

This is really just to update on, and set out a bit more of the background to, these two recent SSIs which were made through the Parliament. Whilst the teams have to date responded to individual queries from organisations and individuals about the regulations and the Order, the teams are aware there has been some ongoing wider concerns and apprehension about them, in terms of their effect. We hope that this note will help to reassure all the relevant stakeholders about the purpose, content and effect of these SSIs.

If you have any follow up queries regarding mental health policy please direct them to Joanna.Keating@Scotland.gsi.gov.uk, and anything on integration of adult health and social care policy please direct to Alison.Taylor@Scotland.gsi.gov.uk :

Kelly Martin
Integration and Service Development
Directorate for Health and Social Care Integration
2 East Rear
St Andrew's House
Regent Road
Edinburgh
EH1 3DG
Tel: 0131 244 3744

BRIEFING NOTE

The Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012 (SSI 2012/65)

The Community Care and Health (Scotland) Act 2002 (Incidental Provision) (Adult Support and Protection) Order 2012 (SSI 2012/66)

1. The Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012

Introduction

The Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012 came into force on 30 March 2012, amending the Community Care (Joint Working etc) (Scotland) Regulations 2002.

Their principal aim was to bring the 2002 Regulations up-to-date by amending the functions which could be delegated between NHS bodies and local authorities and to reflect current accounting standards on integrated budgets; this also served to facilitate the delegation of services which was proposed in the Highland Council/Health Board area.

This note provides further details on these changes, and their effect on the Mental Health (Care and Treatment) (Scotland) Act 2003

These Regulations (as amended) allow particular functions under the Mental Health (Care and Treatment) (Scotland) Act 2003 to be carried out by an NHS body where they have been so delegated by a council. Under the Regulations, the 2003 Act functions that can be delegated by a council to an NHS body are sections 25, 26, 27 and 33. The effect of these 2002 Regulations (as amended) is to enable functions to be delegated by local authorities; it does not of itself automatically delegate the functions.

It should be noted that the changes to sections 25-27 are not new; these were contained within the original 2002 Regulations such that those functions were already delegable. This has been restated via the new amending Regulations, and does not make any material changes to the law.

The effect of allowing section 33 to be carried out by an NHS body, where the relevant functions have been delegated, is that the NHS body will have the responsibility to cause inquiries to be made. In practice, an NHS body may make inquiries alone under section 33. However, in practical terms - particularly if it is expected to require a warrant to enter premises under section 35 - the NHS body would require to work with a mental health officer (MHO), since an MHO is required to provide evidence to a sheriff or a justice of the peace when applying for a warrant under that section. Section 34 is unaffected by the amending Regulations, and so persons listed at section 34(3) are required to co-operate (subject to specific exceptions).

While sections 33-35 often operate together in practice, only section 33 - the duty to inquire - can now be delegated to an NHS body. The duty to co-operate with the local authority or NHS body causing inquiries to be made under section 33 and the requirements for making warrants under section 35 remain unaltered. As such, the involvement of the MHO remains central to this process, even where the duty at section 33 has been delegated to an NHS body. There is nothing in the amendment that would permit an MHO to be employed by a Health Board.

The 2002 Regulations (as amended) enable particular local authority 2003 Act functions to be carried out by an NHS body. Nonetheless, we maintain a clear policy that particular functions must be carried out only by an MHO who is employed by a local authority.

We have also been clear to maintain the separation of "core" MHO functions under the 2003 Act from health board functions. That separation between the core MHO functions on the one hand, and those under Part 4 (health board and local authority functions) of the 2003 Act which are delegated by the 2002 Regulations on the other, is an important concept in ensuring transparent and appropriate decisions are made about patients' care and treatment under this Act. That historic framework was touched on by the Millan Committee in their 2001 Report as part of their wider consideration of the role of MHOs; Millan highlighted the importance of the MHO in the detention and ongoing care of a service user and noted that social workers' independence from the health service meant that they can give a genuinely independent view on compulsory measures, as well as supporting the service user's perception that there is independent oversight of his or her case. We would wish to reassure and stress that there is no change in this approach or policy under the 2002 Regulations, either as they stood originally or as amended earlier this year.

Mental Health Q&A

Will this mean that MHO functions can be transferred into Health Boards?

No. We are very clear that the separation between core MHO functions and Health Board functions under the 2003 Act must be maintained. All this order does is allow one additional local authority function under Part 4 of the 2003 Act to be delegated, namely section 33; sections 25-27 have been capable of delegation since 2002.

In practice, section 33 is often used in conjunction with sections 34 and 35. Why amend only section 33?

Section 33 establishes the duty to inquire into individual cases. This requires the relevant body to 'cause inquiries to be made'. Where this function has been delegated to a Health Board, this will enable the Health Board to initiate the inquiries. The duty of co-operation at section 34 means that the Health Board can require other organisations to co-operate in the inquiries.

Does this mean that the role of MHOs will be eroded?

No. Where a warrant needs to be made under section 35, the involvement of an MHO is still required. As such, where a Health Board causes inquiries to be made and expects a warrant to be required, they should co-operate with an MHO, as per section 34.

Will this cause confusion and uncertainty about who is responsible for certain functions?

No. The transfer and delegation of powers is a large undertaking that organisations will require to consider carefully. We will expect them to communicate clearly with staff and stakeholders to set out any changes and their implications.

2. The Community Care and Health (Scotland) Act 2002

(Incidental Provision) (Adult Support and Protection) Order 2012

The Community Care and Health (Scotland) Act 2002 (Incidental Provision) (Adult Support and Protection) Order 2012 came into force on 31 March 2012.

This note provides further details on this Order and its effect on the Adult Support and Protection (Scotland) Act 2007.

The order applies only where any function under part 1 of the ASP Act has been delegated by a local authority to an NHS body by virtue of arrangements made under section 15(1) of the Community Care and Health (Scotland) Act 2002.

Where such delegation has taken place, any reference to a 'council officer' under Part 1 of the ASP Act is to be read as including a reference to an employee of the relevant NHS body. Similarly, any reference to a 'council nominee' under Part 1 of the ASP Act is to be read as a reference to a nominee of the NHS body.

It is important to note that the Adult Support and Protection (Scotland) Act 2007 (Restriction on the Authorisation of Council Officers) Order 2008 remains in place. This sets out that a council (or the NHS body, where the Order applies) shall not authorise a person to perform the functions of a council officer (or the NHS body, where the Order applies) unless that person meets particular requirements:

• The person is registered in the part of the SSSC register maintained in respect of social workers or is the subject of an equivalent registration;
• The person is registered in the part of the SSSC register maintained in respect of social service workers (this requirement applies only to functions carried out under sections 7 - 10 of the ASP Act);
• The person is registered as an occupational therapist in the register maintained under article 5(1) (establishment and maintenance of register) of the Health Professions Order 2001(b); or
• The person is a nurse.

In addition to meeting one of these four criteria, the person must also have at least 12 months' post-qualifying experience of identifying, assessing and managing adults at risk.

The effect of this is that the current skill set and experience which is required currently of council officers is preserved, even where the functions under Part 1 of the ASP Act are transferred by the council to an NHS body.

It should also be noted that the order provides an enabling power, not a duty or requirement to transfer these functions.

Adult Support and Protection - Q&A

Does this change who can carry out council officer functions under the ASP Act?

Technically, yes. Where a local authority has delegated relevant functions to an NHS body, any reference to a 'council officer' in Part 1 of the ASP Act must be read as including reference to an NHS body. However, the same professional registration and experience set out by the Adult Support and Protection (Scotland) Act 2007 (Restriction on the Authorisation of Council Officers) Order 2008 are still required. This means that largely the same professionals will still undertake council officer duties.

What is the rationale for this?

The integration of health and social care is a key policy for Scottish Ministers. The goal for integration is to deliver care that is better joined up and as a consequence delivers better outcomes for patients, service users and carers. Most Health Boards are considering what this means for them, but NHS Highland and Highland Council have already transferred adult protection functions. This Order enabled that to happen while ensuring that the necessary skills and experience required to carry out council officer functions remained in place. There is nothing in the Order which compels the transfer of functions: it applies only where the functions under Part 1 of the ASP Act have been delegated by the council to an NHS body.

Where delegation takes place will it change or dilute the duties and powers the ASP Act creates and places on council officers?

No, none of the functions have changed.

Where delegation takes place will this alter the criteria that had to be met when appointing a 'council officer'

No, the requirements of the Adult Support and Protection (Scotland) Act 2007 (Restriction on the Authorisation of Council Officers) Order 2008 remain in place.

How will this affect the services delivered to adults at risk of harm?

Adults at risk of harm will continue to be offered the same support and protection provided for under the ASP Act. By improving integration across health and social care, Ministers are seeking to improve continuity of care, and outcomes for people using services.

Consultation on integration of adult health and social care

More broadly, you will be aware that the Scottish Government has now published its proposals for integrating adult health and social care. You can find the consultation document on the Scottish Government website, here:

http://www.scotland.gov.uk/Publications/2012/05/6469

The development of legislation to support Ministers' proposals for adult health and social care will require further consideration of the Community Care and Health (Scotland) Act 2002, as well as these Regulations. We will ensure effective engagement with stakeholders in this process.

We look forward to receiving your responses to the consultation.

Reshaping Care and Mental Health Division
3ER St Andrew's House

Integration and Service Development Division
2ER St Andrew's House

May 2012