Social Care (Self-directed Support) (Scotland) Act 2013: Draft Regulations and Statutory Guidance – Analysis of Consultation Responses

11 GUIDANCE - SUPPORTED DECISION-MAKING AND CIRCLES OF SUPPORT

11.1 Section 9.2: Supported decision-making and circles of support shows the steps that should be taken to provide assistance to a supported person to ensure they can play as full a role as possible in the decisions on their care and support. Guidance is given on:

• Assistance with understanding and/or making decisions
• Assistance with communicating decisions

11.2 This section also looks at what to do when the supported person lacks capacity, circumstances where the professional may have doubts or questions about a supported person's capacity and gives guidance on involving a proxy.

Question 9a: Was this section of the guidance clear and easy to understand?

11.3 Sixty-eight respondents said that this section of the guidance was clear and easy to understand. Seven respondents said no and 69 did not give an answer.

Question 9b: How useful did you find this section of the guidance?

Table 11.2 Usefulness of Section 9.2 of the guidance

11.4 Most of those who replied said that this section of the guidance was quite useful (54). Nine said it was very useful, ten that it was not very useful, three that is was not at all useful and 68 did not address this question.

Question 9c: Do you have any further comments on this section of the guidance?

11.5 Seventy-four respondents commented. Some respondents chose to provide general commentary; others made reference to specific paragraphs in the guidance.

11.6 A number of respondents commented that the section is clear and easy to understand or welcomed the guidance around supported decision making and the role of individuals within a circle of support. However, some respondents adopted a more qualified position and a number of key themes emerged.

11.7 A significant number of respondents felt that clarification was needed in relation to the term 'circles of support'; for example, whether circles of support should be viewed as formal or informal structures.

11.8 There were also requests for case studies to be incorporated in this section or for a diagram to illustrate a circle of support.

11.9 There were also a small number of suggestions that this section should be incorporated into the earlier section on 'The Supported Person's Pathway'.

11.10 There were a number of requests for more guidance on situations where a supported person's capacity to consent is in doubt or for there to be greater recognition that individuals will have differing levels of understanding and capacity to engage in the process of planning support.

11.11 Some respondents also commented that this section was not explicit enough, or that it does not reflect the complexity of capacity.

11.12 Linked to this issue, there were a number of references - mostly from organisations within the voluntary sector - for a need to bear in mind the principles of the Adults with Incapacity (Scotland) Act 2000 (AWI 2000) or for the guidance to be clearer about decision making responsibilities and involving people in line with AWI 2000. There were also a small number of suggestions for clear working agreements to ensure all individuals involved have a clear understanding of their role.

11.13 A number of respondents noted that people need to understand their roles and responsibilities; including the supported person, a professional involved, a guardian or attorney, a mental health officer, an advocate or wider family members. A few respondents also asked for clarification as to whether in situations where a local authority has welfare guardianship and the power to make welfare decisions, whether option 3 is automatically applied and whether this can include the local authorities' own services.

11.14 There were some calls for the guidance to make more reference for the supported person to take as much choice and control as they can and wish to, and that they are allowed an appropriate timescale in which to make their decisions.

11.15 There were also a small number of comments that the guidance as it stands focuses on the role of the professional but with little emphasis on how an individual can be supported to make decisions. Additionally, a small number also noted that there may be a need for creative solutions and approaches.

11.16 Some respondents noted concerns over whether current information and support services will have the capacity, knowledge and training to deal with the likely increased number of referrals that may come about. Linked to this, there were also some comments on the need for access to independent advocacy, with some requests for more reference to this in the guidance.

11.17 As at some of the other questions, there were also some requests for more consideration of children and young people throughout the document. There were also some requests for more references to the legislative and policy framework or to other legislation that needs to be taken into account. This legislation included:

• Incapacity (Scotland) Act 2000;
• Section 13Z of the Social Work (Scotland) Act 1968;
• Code of Practice for Local Authorities exercising functions under the AWI (Scotland) Act 2000;
• Adult Support and Protection.