Adults with incapacity ( Scotland ) Act 2000: proposals for reform

Chapter Ten

Order For Cessation Of A Residential Placement, Creation Of A Short Term Placement

The Scottish Law Commission, in their report ^[17] on Adults with Incapacity, recommended that there should be a provision, like the provision in section 291 of the Mental Health (Care and Treatment) (Scotland) Act 2003 in relation to persons who were in fact detained in a care setting other than a hospital setting and were not free to leave

We agree that notwithstanding the rights of review and appeal within the guardianship provisions and the placement order, there should be available a means by which an order can be made to the court or tribunal to bring to an end;

• a placement in accommodation provided or arranged for by a care home service or adult placement service for which there is no authorisation under the 2000 or 2003 Act, in respect of which there is no capacity on the part of the adult to consent to the placement and which has resulted in the adult being subject to significant restrictions on his/her liberty; or
• arrangements within a placement provided or arranged by a care home service or an adult placement service for which there is no authorisation under the 2000 or 2003 Act in respect of which there is no capacity on the part of the adult to consent to the arrangements and the arrangements are such that they result in significant restrictions on the person’s liberty.

The test to be applied would be that the tribunal or court would need to be satisfied that the person is being subject to significant restrictions on his or her liberty in the absence of authority under either Act, or lack of capacity on the part of the adult to consent to the placement.

Questions

Do you agree that an order for the cessation of a residential placement or restrictive arrangements is required in the AWI legislation?

If so does the proposal cover all the necessary matters?

Short Term Placement

We are intending that the changes to guardianship processes will mean it is easier and quicker to obtain a guardianship order when it is needed.

However we recognise that there are situations when someone may need to be moved quickly for their own safety, and they are not in a position to consent to such a move because of a lack of capacity.

In certain situations it may be appropriate to use an order under the Mental Health (Care and Treatment) (Scotland) Act 2003 but this is obviously not always the case.

We suggest that there is a need for a short term care order that can be used in situations where:

• A person needs to moved quickly to alternative accommodation, or have restrictions placed on their existing accommodation.
• There is no pre - existing authority for the change.
• The change would result in the adult being subject to continuous supervision and being unable to leave without permission.
• An independent medical assessment has considered the changes are necessary for the safety and wellbeing of the individual or others and the changes are proportionate.

We are proposing that a multi-disciplinary decision making meeting arranged by the relevant Integration Authority ^[18] should be held to consider the proposed placement. The meeting must include the involvement of a Mental Health Officer.

We suggest that the placement should be for no longer than 28 days, and that can be renewed once, with an appeal to either the sheriff court or a tribunal, depending on the forum that is decided for AWI work in general terms. The adult, any guardian in respect of the adult, any welfare attorney in respect of the adult and any other person expressing an interest in the adult’s care may appeal. But it should be noted that even if there is evidence that the adult does not wish this move, we consider that it will be necessary to allow for the move, with the proviso that robust appeal provisions will be in place. We intend there to be a short timescale in which an appeal can be intimated, with no move taking place until the end of the intimation period. If an appeal has been lodged, no move should take place until the outcome of the appeal and obviously only then if the appeal against the move is unsuccessful. Early consideration of the case would be essential.

Clearly, support will need to be provided to the adult to enable them to be as involved as possible in the process and to ensure their will and preferences are taken account of.

During the period of the placement order the long term needs of the adult should be considered, which could result in a guardianship application, or the adult being able to express his/her will or preference in any given situation, with the appropriate support to make decisions.

Questions

Do you agree that there is a need for a short term placement order within the AWI legislation?

If you agree, does the above approach seem correct or are there alternative steps we should take? Please comment as appropriate.

Use of section 13ZA of the Social Work (Scotland) Act 1968

This provision permits local authorities to provide services to incapable adults. Where it has been decided that an adult’s needs call for the provision of a community care service and it appears to the local authority that the adult is incapable in relation to decisions about the service, the local authority may take any steps which they consider would help the adult to benefit from the service including moving the adult to a residential care service. Such action can only occur if there are no objections from the adult or anyone claiming an interest in the adult.

The local authority must not take any action under this section that will result in significant restrictions on a person’s liberty because this is not specifically authorised under the Social Work (Scotland) Act 1968.

When using section 13ZA, Scottish Government guidance recommends that all of the circumstances of each individual case requires to be taken into account, and that incapacity of itself does not automatically mean that there will be a deprivation of liberty in the provision of the care or intervention package to that adult.

We are considering whether in the light of proposed changes to the AWI legislation, there remains a need for section 13ZA in its current form. We are also aware that the use of section 13ZA extends beyond moving persons into residential accommodation and includes more general provision of services. It may be therefore that what is required is a change to the provision to restrict its use to the provision of services with the exception of a move to residential accommodation.

We would like your views on this matter to help us determine the best way forward.

Questions

Do you consider that there remains a need for section 13ZA of the Social Work (Scotland) Act 1968 in light of the proposed changes to the AWI legislation?

If you answered yes, should the section remain in its current form or are changes required to, for example, restrict its use to the provision of care services with the exception of residential accommodation? Please give reasons for your answers.