Choosing a care home on discharge from hospital: guidance

Capacity, consent and proxy decision-makers

Assessing capacity

16. Some patients may lack capacity to make their own choices about on-going care. This may be because of mental disorder or inability to communicate due to physical disorder. The Adults with Incapacity (Scotland) Act 2000 provides a framework for decisions, including a range of ways to allow others to act or make decisions for an adult in this situation. Also, any individual, including those with a mental disorder, should have access to independent advocacy. There are three broad scenarios in relation to capacity.

Patient has capacity

17. Patients with capacity in relation to the specific decision as to where they should reside will make their own choices. If they wish, they may involve relatives, friends and independent advocates to help them make and communicate their choices. Practitioner staff must do all they can to maximise individuals’ abilities to make choices by giving them information in a way they can understand and sufficient time and support to make their own decisions. (see guidance on assessing and communicating capacity)

Patient lacks capacity and has proxy decision-maker

18. If a patient does not have sufficient capacity, there may be a welfare proxy. This would be a welfare attorney, guardian or holder of an intervention order.

• They may have a specific power to decide where the individual will reside. However this power does not extend to insisting that the patient remains indefinitely in hospital, once they are clinically ready for discharge.
• This power cannot be assumed - important to check that they have the power to consent to the required decisions about the patients long term placement.
• Practitioners should ask for written evidence of the powers granted, and retain a copy in case files.
• Powers can only be used where the granter lacks capacity in relation to the decisions and/or actions to be taken.

19. Whilst an individual retains the capacity to do so, they can grant a power of attorney in accordance with the AWI Act. This gives a trusted person, usually a family member, or solicitor, the power to make certain decisions or take certain actions on behalf of the person, should they eventually lose their ability to do so themselves. A person may have the capacity to grant a power of attorney, even though they lack some capacity to make more complex decisions for which they are granting the powers. When considering granting a welfare Power of Attorney, it is important for the granter to discuss in advance with the proposed attorney the powers they wish them to have as well as the circumstances in which they would wish these powers to be used. The granter must not be affected by the undue influence of others in granting these powers.

20. The Law Society of Scotland has issued guidance for solicitors on working with vulnerable clients and preparing a welfare power of attorney.

21. A Welfare Guardian or holder of an intervention order, under the AWI Act can have similar powers to a welfare attorney, but is legally appointed by the courts. Anyone claiming an interest in the welfare of the adult can apply for guardianship or intervention orders, including relatives, carers or other parties, such as a local authority. They can also apply to the Sheriff Court should they have concerns about how any of a proxy’s powers are being used or not used. When a welfare guardian is a relative, carer or other private individual the local authority in which the person lives must supervise the guardian. The supervisor will look at the appropriateness of the use of powers. (Intervention orders are intended for one-off actions or decisions, most often relating to property or finance.)

22. When a proxy is making decisions on someone’s behalf they must follow the principles laid down by the Act, these include:

• Any action or decision taken must benefit the adult and only be taken when that benefit cannot reasonably be achieved without it.
• Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person’s freedom as little as possible.
• In deciding if an action or decision is to be made, and what that should be, account shall be taken of the present and past wishes and feelings of the adult, as far as they can be ascertained. The person should be offered appropriate assistance to communicate his or her views.
• Where practicable, they should take the views of relevant others into account. This will include the views of practitioner staff and other family members.
• They must encourage the individual to use existing skill and gain new skills. This includes helping the individual to exercise any capacity he/she has to make choices concerning their property, financial affairs and their personal welfare.

23. As stated previously, this power does not extend to insisting that the patient remains indefinitely in hospital, once they are clinically ready for discharge. In situations where a proxy refuses to agree to discharging the patient, on grounds of choice, they should be reminded of the above principles, and their duty to follow them. If the disagreement continues, they should be informed of their right to seek directions from the Sheriff as to whether or not their powers allow them to block the discharge. This is discussed further in the Challenging the Proxy’s Decision section on page 12.

Patient lacks capacity and has no proxy decision-maker

24. If an incapable adult has no attorney with suitable powers, it may be necessary for someone to apply to the court for a guardianship order on the adult’s behalf. To prevent the adult's discharge being delayed early identification of the need for a guardianship order is recommended. There are certain key actions that should be taken, as detailed in the publication Adults who lack capacity - discharge process: key actions.

25. However, where the adult does not object and there is agreement as to the need for a care home, section 13ZA of the Social Work (Scotland) Act 1968 can be used.

Using Section 13za of The Social Work (Scotland) Act 1968

26. The Social Work (Scotland) Act 1968 ("1968 Act") has been amended to include powers under S.13ZA, to provide services to adults who have been assessed as needing a service but who lack the capacity to consent to receiving that service.

27. Where a local authority considers using their powers under s13ZA of the 1968 Act they must consider whether the proposed action amounts to a deprivation of liberty under Article 5, ECHR. Guidance on this issue is contained in Annex 1 of CCD 5/2007 which now forms part of the Code of Practice for Local Authorities Exercising Functions under the 2000 Act.

28. Where a local authority has, following an assessment of the adult’s needs, concluded that the adult requires a community care service but is not capable of making decisions about the service, they may take any steps which they consider necessary to help the adult benefit from that service.

29. Where all parties concerned agree that a move to a care home is required, and agree which care home is most appropriate for the individual, the local authority has the power to place the patient in a care home without the requirement for a guardianship order.

30. Section 13za cannot be used where:

• Any of the parties with an interest disagree with the decision to discharge, or the next stage of care,;
• There is a guardian or welfare attorney with powers relating to the proposed steps;
• An intervention order has been granted in relation to the proposed steps;
• An application has been made (but not yet determined) for an intervention or guardianship order relating to the proposed steps.

31. In these circumstances the family, carer or other appropriate person (e.g. a solicitor or advocate) should be advised to apply for guardianship. The disagreement with the decision to discharge the patient to a care home should be detailed in the Mental Health Officer’s report. It should also explain the course of action the NHS and local authority wishes to take (i.e. discharge the patient to a care home that can meet the patient’s assessed needs).

32. A realistic timescale for processing the Guardianship application should be agreed with the applicant, setting out timescales for completing key milestones in the process. If these timescales are not adhered to, or the party refuses to apply then the local authority should apply for guardianship themselves.

33. During this application process staff should continue dialogue with all parties to ensure discharge can progress, once Guardianship is in place. The section below on Challenging the proxy’s decision provides advice on how to work with Guardian’s who continue to refuse to engage with the discharge process.

34. Full details of guidance on all the statutory functions which are conferred on local authorities under the 2000 Act are covered in the Code of Practice for Local Authorities Exercising Functions under the 2000 Act.

Challenging the proxy’s decisions

35. The proxy can have no more authority than a capable patient. Therefore, a proxy has no right to insist that the patient remains in hospital once the patient is clinically fit for discharge. The route to challenge a decision to discharge from hospital care is available for the proxy in the same way as for a capable patient. Guidance on disputing discharge is contained in the Guidance on Hospital Based Complex Clinical Care.

36. Where there is conflict between the proxy and the responsible clinician over the decision to discharge, every effort should be made to resolve this by discussion. The proxy should be reminded of their duty to act in the best interests of the patient, as highlighted in the Code of Practice for Guardian’s, a copy should be provided if necessary.

37. If resolution about the use of proxy powers is not possible, the AWI Act offers a number of possible solutions:

• A Sheriff may, on application under section 3 of the 2000 Act by anyone claiming an interest in the personal welfare of the adult, give directions as to the use of the powers. The sheriff may also choose to call for additional reports and may appoint a safeguarder to represent the interests of the adult who is the subject of the application
• A Sheriff on application under section 20 of the 2000 Act, by anyone claiming an interest in the personal welfare of the adult, may revoke any of the powers of a welfare attorney or revoke them entirely.
• A Sheriff may also order under section 20 of the 2000 Act that a welfare attorney is subject to supervision by the local authority when exercising powers and may require the welfare attorney to report back to him as to how the attorney is exercising his powers

38. If the proxy disagrees with the decision to discharge the Adults with Incapacity Act allows for directions to be sought from the Sheriff by any person claiming an interest in the patients welfare, as to whether the proxy’s powers allow them to refuse to move the patient to a suitable care home. A realistic timescale for lodging the application should be agreed by all parties and closely adhered too.

39. The NHS (and local authority partners) must be able to demonstrate that they have come to a clear legal decision that the patient is clinically ready fordischarge, and would be better cared for in a care home setting than a hospital.

40. The next section of this guidance contains further advice on challenging the proxy’s decision and dispute resolution (page 19).