THE Adults with Incapacity (Scotland) Act 2000: LEARNING FROM EXPERIENCE
Chapter SIX the Learning from Experience project: conclusions
6.1 By the time the consultancy commenced in September 2002, Parts 1, 2, and 3 of the Adults with Incapacity Act had been in operation for eighteen months, and Part 6 for six months. What each of the elements of the consultancy reflects is the impact of a complex piece of legislation in the early stages of implementation. Together they present a dynamic picture. Some of the issues that have been raised since the Act came into force are already being addressed by the Scottish Executive in response to the findings from this consultancy and other projects (for example the work on Part 5 - Davidson et al. 2004; Drinkwater et al. 2004). Other policy and practice implications will only become fully apparent over time.
6.2 The evidence from this early phase suggests that the Act is working and is yielding benefits for adults with incapacity and for those who care for and about them. But what is also revealed are possible legislative, procedural and practice issues which may inhibit the full realisation of the objectives behind the legislation. These are discussed here along with suggestions for how to approach these matters which are addressed to the wide range of organisations, professionals and other individuals who engage with the Adults with Incapacity Act.
When to invoke the Act
6.3 A fundamental issue highlighted in the course of the consultancy was the lack of clarity amongst local authorities on when to evoke the Act. This has given rise to concerns about: equity of access to the benefits afforded by the legislation; and transparency in decision-making about use of the Act. The criteria for using the Act should be made explicit in every case. This is being addressed, at the time of writing, through new guidance from the Scottish Executive (SWSI 2004), but has implications for the policies and practices of local authorities. Adults and carers also need to be provided with clear information about the grounds for using the Act so that they can exercise their rights.
6.4 The principles are fundamental to the operation of the Act and as such have implications for the on-going support and supervision of guardians, attorneys and intromitters. Awareness and understanding of the principles have to extend beyond those immediately involved in making an application to encompass those providing continuing care and support for the adult - beyond the supervisory roles of the OPG and MWC, to include social workers and care managers.
6.5 Restrictions on who can act on behalf of an adult with moderate means, either as an intromitter or as a financial guardian to manage their affairs, have been identified by local authorities and the OPG as creating a major problem. These limitations can have two consequences for the adult. First, where there is no-one to act as intromitter, but the local authority is prepared to fund or part-fund a solicitor to act as a financial guardian, this still may represent recourse to a more restrictive option than is necessary to benefit the adult and may mean some loss of income for them. On the other hand, if no individual is able or willing to intromit and the local authority is unable to fund a solicitor then it opens up a decision-making vacuum. The consultancy identified several potential legislative and non-legislative solutions to this issue for further consideration.
Sale and registration of property
6.6 The OPG and carers who have experience of the situation, have suggested that the requirement on guardians to register heritable property in the General Register of Sasines or the Land Register of Scotland should be reviewed as it is costly, time-consuming and offers the adult no additional safeguard. Clarity is required on circumstances in which the guardian must seek the consent of the OPG for the sale and price of an adult's property. The current wording in Schedule 2 6 (1) is ambiguous and potentially leaves the adult without a safeguard.
6.7 For the Act to be accessible people need to be aware of and able to use the legislation effectively. Barriers to access include lack of information and support, costs and procedures.
Information and awareness
6.8 To be able to use the Act, or advise others who may wish to use it, the public, individual adults, carers, and professionals across the caring and financial sectors, need to be aware of and informed about the legislation. Evidence from the consultancy suggested that, beyond the core of MHOs and psychiatrists, knowledge and understanding of the Act have been very variable. This has wide implications in terms of facilitating the use of the least restrictive intervention (for example, power of attorney at early diagnosis of dementia).
6.9 To enhance access to the legislation requires that professionals, with a role in the care of adults who may come within the purview of the legislation, be aware not only of the broad outlines of the legislation but an understanding of its principles and the concept of incapacity.
6.10 Financial institutions also must be aware of the Act as they have a role in facilitating access to the legislation through the advice they give to customers and by responding appropriately to someone with authority to access funds. They have a key role in ensuring that their customers and potential customers with mental disability are not subject to discrimination.
6.11 A public awareness-raising programme could start to address the apparent low level of general consciousness of the legislation, and might be best undertaken collaboratively by the Scottish Executive, local authorities, specialist voluntary organisations and user groups.
Access to support and supervision
6.12 The consultancy uncovered the different structures in place to support local authority and private applications. Relatives and carers, as applicants and proxies, did appear to be very isolated in dealing with complex welfare, financial and procedural matters.
6.13 Whilst the legislation makes provision for formal supervision, lay proxies have expressed a need for a less formal system of support. There may be something to be learnt from the guardianship system in Germany where this gap has been recognised and specialist voluntary organisations are funded to provide support for private applicants, both in the course of making an application and over time.
Giving users a voice
6.14 To enable adults to have a voice in the process requires: information that may be easily understood; access to support throughout the process; and representation in the course of the application.
6.15 The review of information carried out by the consultancy found that, other than on a very general level, there was no information designed to explain to the adult, in an accessible way, their rights under the legislation, including their right to appeal. This gap needs to be addressed collaboratively between the Scottish Executive, local authorities and the different user groups.
6.16 The Act makes provision for the appointment of safeguarders, but evidence from the consultancy suggests variability in practice in the use of safeguarders, although the reasons for this were unclear. There is also little evidence of the use of independent advocacy to support the adult, which may reflect a lack of local knowledge about services or the patchy provision of such across Scotland (Advocacy Safeguards Agency 2003). Given the importance of hearing the adult's voice, further research could explore the mechanisms for representing the adult within the process.
Fees and legal aid
6.17 Under Parts 2, 3 and 6 of the Act, costs are incurred at each stage. For Part 2 this can involve solicitor's fees and fees to the OPG for registration. Intromission with funds requires fees for medical certificates of incapacity and for registration. In private applications under Part 6, the costs can include solicitor's fees, medical certificate costs, and the registration fee to OPG. In cases of financial guardianship, applicants may be required to apply for caution and to pay the OPG an annual fee for reviewing the management accounts. Even for local authority applications there are costs associated with medical certification and registration. Furthermore, if orders under Parts 3 and 6 are granted for a limited period, for example three years, and a new application applied for, all these costs will be incurred again.
6.18 In relation to actions under Part 6, although it was not possible to estimate the number of cases where private individuals, because of the costs they feared would be involved, have been deterred from pursing an application, anecdotal information has suggested that the expenses involved, particularly solicitor's fees (approximately 70% of all costs), may be a barrier to private applications under the Act.
6.19 Means-tested legal aid is available for intervention and guardianship orders under the Adults with Incapacity (Scotland) Act 2000. There are two stages at which applications for legal aid may be appropriate. The first is at the pre-application stage when legal aid for Advice and Assistance may be applied for by the person wishing to make an application on behalf of the adult. Eligibility for advice and assistance is based on the resources of the person who is making the application and not the adult. Civil legal aid can be made available for representation in proceedings under Adults with Incapacity (Scotland) Act 2000, and financial eligibility is assessed on the resources of the adult and not the applicant.
6.20 Before the transfer of guardianship under the Adults with Incapacity (Scotland) Act 2000, Advice by Way of Representation (ABWOR) had been available, without a means test, for proceedings under Part V of the Mental Health (Scotland) Act 1984 and was therefore available for applications for appointment of guardians under Part V.
6.21 The impact of this change in the eligibility rules for guardianship applications is widely and strongly viewed across the stakeholder groups as representing a substantial rights issue. It is thought that many adults who could benefit from the protection offered by the Act will be prevented from doing so because of a fear of the expenses that may be incurred by their primary carer or next of kin. Secondly, it is regarded as unjust that the burden of the costs of a legal intervention to remove decision-making powers from an adult (especially in the sphere of welfare decision-making) should fall on that adult. In response the Scottish Executive has initiated discussion with Scottish Legal Aid Board (SLAB) and the Law Society of Scotland to consider this matter further.
6.22 Hearings under Part 6 are usually held in the sheriff courts, and can be held in chambers. A consistent theme to emerge from across the different elements of the consultancy was the perceived inappropriateness of the court environment for these cases.
6.23 Although there may be good reason for the formality that comes with a hearing before a sheriff, the physical environment of the court, its associations with criminality, and the possibility of being heard in public can make the experience intimidating, particularly for nearest relatives and adults. Steps are being taken to encourage holding hearings in private session, but consideration could also be given to holding them in less formal surroundings. In the long term, consideration should perhaps be given to extending the function of tribunals under the Mental Health (Care and Treatment) (Scotland) Act 2003 to hearings under the Adults with Incapacity (Scotland) Act 2000.
6.24 Two issues arose in relation to timescales for Part 6 applications. The current period of 30 days, required for preparation and co-ordination of the application, including the MHO and medical reports, can on occasion be insufficient, for example, if the adult is unfamiliar to the medical practitioners or MHO undertaking the assessment. Thought should be given to the need for, and implications of, extending the current statutory timescales.
6.25 Second, there may be issues in relation to the period from commencement of the application process to a decision being made. It was not possible for the consultancy to quantify timescales involved in processing Part 6 applications, but both the implementation and research elements suggested that in some cases it can be quite prolonged. Some of the delay derives from difficulties in meeting the 30-day deadline described above, with the result that the whole process has to commence again. Once an application has been submitted, delays can result from: the legal aid process; adjournments of hearings to obtain further evidence; or to allow for the attendance of persons with an interest.
6.26 A more detailed future analysis of the process, looking at court and SLAB records, could be undertaken to better understand the timescales and possible delays involved.
Information and training for professionals
6.27 The consultancy carried out a review of training activities that took place during the first two years of the legislation. In the early stages of implementation the Scottish Executive initiated a number of training activities as did other agencies, targeted at different professional groups. However, identifying and meeting the different levels of knowledge and specialist skill required have proved to be difficult and complex to accomplish and present an ongoing challenge.
Communicating with the adult
6.28 The consultancy found that the principle of taking into account the past and present wishes and feelings of the adult was clearly understood by professionals involved in the assessment process. Being able to communicate is fundamental to assessing the adult's capacity but it is not clear the extent to which people undertaking assessments try to maximise the capacity of the adult to communicate by using different ways to obtain their views. In reflecting the views of practitioners from across the professions, it is suggested that guidance and training needs to be further developed to encourage greater consideration of the range of technological and other means to assist communication.
6.29 The consultancy found that amongst practitioners there is a general level of understanding that capacity is not 'all or nothing'. However, general medical practitioners expressed a lack of confidence in their competence to carry out assessments of incapacity in relation to specific areas of decision-making. This finding was confirmed though the consultation on the Part 5 code of practice and by research into the implementation of Part 5 (Drinkwater et al 2004; Davidson et al 2004). As a consequence, the training needs of medical practitioners and other health care professionals who may become involved in assessing capacity are to be addressed by the Scottish Executive.
6.30 For the purposes of making an application under Part 6, there is recognition that incapacity is decision-specific. However, evidence from the Mental Welfare Commission, in relation to welfare guardian applications, suggests that that there is often a mismatch between the powers sought and assessed need, in that more powers may sometimes be sought than are necessary for the benefit of the adult in terms of their needs at that time. Whilst there may be some justification (such as the adult having a degenerative illness) this represents an infringement of the 'least intervention' principle and the rights of the adult. This indicates the need for the different practitioners with a role in the pre-application phase to work together to ensure greater consistency between the areas of incapacity that have been identified in relation to decision-making and the powers sought and granted.
6.31 There are complex interface issues between the Adults with Incapacity (Scotland) Act 2000 and current mental health law as well as with other pieces of legislation, including data protection and financial services laws. The implementation of the new Mental Health (Care and Treatment) (Scotland) Act 2003 from 2005 and possible vulnerable adults legislation in the future suggest an even more complex legislative picture with implications for practice. The Scottish Executive recently commissioned a detailed comparison of the texts of the 2003 Mental Health Act and the Adults with Incapacity Act, which highlighted areas of potential interface between the two which will be available in autumn 2004 on the Scottish Executive website (Gordon),. It has been suggested that further research could be undertaken specifically to explore a range of interface issues.
6.32 As the foregoing indicates, a number of core issues have been identified from across the three elements of the consultancy, some of which are already being addressed, others that are yet to be tackled. The consultancy has also established a basis for future monitoring of Parts 2, 3 and 6 of the Act. From the activities of the project and the analysis of data gathered in the course of these, it has been possible to identify areas that could be focussed on in further research. An important, concluding point from this multifaceted exploration of the legislation is that the varied evidence demonstrates that broadly the Act is working and yielding benefits for adults with incapacity and for those who care for and about them.