THE Adults with Incapacity (Scotland) Act 2000: LEARNING FROM EXPERIENCE
INTRODUCTION AND BACKGROUND (Chapter 1)
Chapter One provides an introduction to the report which details findings from the consultancy, which was publicised under the title 'the Learning from Experience Project'. The Adults with Incapacity (Scotland) Act 2000 (the Act) has enhanced existing safeguards and introduced new mechanisms for protecting the interests of adults who are unable to make all or some decisions, or to communicate decisions, relating to their welfare or finances. Five Parts of the Act are the responsibility of the Scottish Executive Justice Department:
Part 1 - the General Principles behind the legislation
Part 2 - Power of Attorney (POA)
Part 3 - Intromission with Funds (IwF)
Part 6 - Guardianship and Intervention Orders
Part 7 - Miscellaneous Provisions
In 2002, following a competitive tendering exercise, the Scottish Executive contracted a partnership of Alzheimer Scotland - Action on Dementia and the Scottish Development Centre for Mental Health to undertake the programme of work summarised here in relation to Parts 2, 3 and 6 of the Act. The consultancy had three main aims:
to explore issues arising from the implementation of the Act;
to monitor usage;
to undertake research into the operation of the legislation.
The project was designed to be dynamic, offering ongoing feedback to the Executive on emerging issues and trends, as well as providing both quantitative and qualitative data describing the usage, experience and impact of the Act.
MONITORING THE USE OF THE ACT (Chapter 2)
The Office of the Public Guardian (OPG) provided data on usage, for the first three years of the operation of Parts 2 and 3 of the Act (2001-04), and for the first two years of Part 6, (2002-04). The main findings from the data analysis are summarised in the report.
Over 2001-04, more than 30,000 powers of attorney (POA) were registered under Part 2; 1 433 people were granted authority to intromit with funds (IwF) under Part 3. Scotland-wide, the rate of POA registered per 100,000 of adults (16 years and older), 2 increased over the three years of operation from 135 to 348. There were, however, substantial variations between local authority areas. In 2003-04, registrations per 100,000 adults, by local authority area, ranged from 108 to 649.
In 2003-04, the number of Part 6 guardianship orders granted had doubled on the previous, first year's figure to just under 600. The number and types of guardianship orders per 100,000 adults varied widely between local authority area. Against a Scotland-wide rate of 14 orders in 2003-04, local authority area rates ranged from four to 28 orders.
Over the two years of operation, the number of intervention orders granted increased but remained low - fewer than 170 in 2003-04. Although few in number, the data suggest variations between local authority areas.
Relatives comprised over 80% of nominated attorneys in all three years, and the vast majority of applicants for IwF.
In 2002-03, local authorities comprised almost 60% of applicants for all guardianship types, and relatives around 30%, with professionals largely the remainder. In 2003-04, 45% of applicants were relatives and 43% local authorities. In 2003-04, the proportion of local authorities as sole guardians declined from around two thirds in the previous year to about one third, and the proportion of relatives as sole guardians increased from just under 25% to 37%. In both years, relatives were much more active as joint guardians than local authorities or professionals, across all types of order.
In both years over one half of applications for intervention orders were made by relatives and between one third and 40% by local authorities. The proportion of relatives appointed as interveners decreased from 90% to just under two thirds, with an increase in the proportion of local authority interveners from just under 7% to nearly 23%.
Monitoring data for the first three years of the Act suggest a dynamic picture, with patterns of usage changing over time. IwF and intervention orders are not yet used extensively. There were wide variations across the country in the use of the different procedures. Relatives clearly play a key role across all procedures and the profile of both granters and adults with incapacity is of a predominantly female (two thirds of users), elderly (70-80% are over 60 years old) and white (less than half of one per cent of POA granters was not white) population. Dissemination routes for future data on usage were suggested: the Adults with Incapacity (Scotland) Act website, the website of the Office of the Public Guardian and the Scottish Executive MHO Newsletter.
IMPLEMENTATION OF THE ACT (Chapter 3)
The implementation element of the consultancy involved a number of complementary activities in relation to the operation of the Act:
to identify the experiences and views of users and potential users;
to review information and support for those interacting with the Act, including the relevant Codes of Practice and the website for the Act;
and to provide a source of assistance to resolve difficult queries.
Three key stakeholder groups provided feedback on the operation of the Act:
potential beneficiaries (service users and carers) and organisations representing their interests;
agencies with operational responsibilities under the Act (such as financial institutions, solicitors and medical practitioners);
and agencies with duties under the Act, including the MWC, the OPG and local authorities.
These groups formed a network of contacts which provided feedback in a variety of ways, including meetings, working groups, training sessions and case material. In addition, the consultancy was contacted by 110 individuals from across the networks, one fifth of whom were carers seeking help with complex problems or wishing to report difficulties they were experiencing, particularly in relation to financial and welfare guardianship applications. Key issues for those involved - service users and carers, and organisations, agencies and professionals with operational responsibilities under the Act - that related to implementation were identified.
Key issues emerging from implementation
Lack of publicity about the Act and how it might benefit adults and carers was perceived as one of the main barriers to access.
Gaps in the information produced for adults about their rights if they are subject to an application under the Act.
Lack of clarity about who should support the adult to have a voice in the process, that is, confusion over the role of non-legal or independent advocates, safeguarders, and curators ad litem, and about funding for legal representation for the adult.
Barriers to accessing IwF because of unintended consequences of certain requirements of the Act and regulations.
Inadequate information and support, and instances of the wrong advice being given by solicitors with costly consequences. A common problem was that the lay guardian had not been fully informed of his or her duties in advance of being appointed.
Considerable accumulative costs involved in the process of making a guardianship application.
Lack of automatic entitlement to legal aid, especially in respect of applications for welfare guardianship - widely regarded as a substantial rights issue.
Lack of co-operation from professionals experienced by some carers when making a private application for guardianship. Social workers and doctors did not appear to be accustomed to responding to requests from lay people.
The need for training on 'good practice' issues and ongoing informal support for legally appointed proxies in carrying out their duties (European models could be considered).
The perceived inappropriateness of the sheriff court environment for processing Part 6 cases, due to the view of it as formal, intimidating and associated with criminality.
Mental Health Officers (MHOs), the Mental Welfare Commission (MWC) and Law Society reflected the concerns of carers about the appropriateness of the sheriff courts for dealing with applications under AWI. They considered that consideration should be given, in the long term, 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.
A lack of understanding by some financial institutions, refusing to recognise the authority of certificates issued by the OPG. This was partly a training issue for branch staff, but also due to interfaces between banking laws, the Act and other legislation. Adults were denied access to their funds and their proxies considerably inconvenienced.
Lack of clarity amongst local authorities on when to invoke the Act, creating concerns about equity of access to the potential benefits of the Act and transparency in decision-making about its use.
Restrictions on, and difficulties in finding, appropriate people, who can act on behalf of an adult with moderate means, either as an intromitter or as a financial guardian. Where there is no one to act as an intromitter, but the local authority funds or part-funds a solicitor to act as a financial guardian this may represent a more restrictive option than necessary. This may mean some loss of income to the adult, and a cost to the public purse. However, if no individual is able to intromit and the local authority is unable to fund a solicitor, there is a decision-making vacuum. Several potential legislative and non-legislative solutions have been suggested to address such problems.
The need for a comprehensive training strategy, to include local multi-agency training programmes for health and social care staff with different levels of responsibility under the Act.
The need for good practice guidance for health and social care staff and solicitors on key areas: communicating with adults with severe communication difficulties; understanding the impact of different neurological conditions on ability to reason and make decisions; assessing capacity in relation to a specific decision or levels of decision-making; intimating or notifying an adult about an intervention to which they are to be subject under the Act. MHOs sought further guidance in the codes of practice on how to deal with a range of conflicts of interest.
The lack of emergency powers under the Act, for example, to intervene in cases of suspected abuse or unauthorised, covert removal from home or care setting.
The current period of 30 days, required for the preparation and co-ordination of an application, including the MHO and medical reports, can on occasion be insufficient. It was suggested that consideration should be given to the need for and implications of extending the current statutory time scales, and/or allowing some flexibility for the sheriff to receive a report which is outside the time scale in specific circumstances.
The need to simplify some specific processes and procedures - for example, the recall procedures for guardianship are more complex and time consuming than under previous legislation, which may lead busy staff to allow an order to run its course, against the best interests of the adult, and the legal requirement for local authorities to visit welfare guardians and adults four times a year is viewed as excessive. The Scottish Executive is consulting on a proposal to reduce the number of visits to a minimum of two per annum, giving the local authority discretion to carry out more visits if necessary.
The OPG and others raised issues regarding the sale of heritable property, and 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 needed on circumstances in which the guardian is required to 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.
Concerns raised by social workers and doctors about the need to address the complex interface issues between AWI and the new Mental Health (Care and Treatment) (Scotland) Act 2003. Social workers raised the implications for training and concerns about the adequacy of resources for advocacy for adults with incapacity.
The Act was viewed as having been a catalyst for the improvement of inter-disciplinary working particularly in relation to Single Shared Assessments. The Part 1 principles3received an overwhelming endorsement from those professionals who had become familiar with the Act. They valued the principles as a tool for the facilitation of a 'person-centred' approach to reviews and care planning.
Lack of clarity amongst local authorities on when to invoke the Act, giving rise to concerns about: equity of access to the potential benefits of the legislation; and the transparency in decision-making about use of the Act.
Considerable evidence from the MWC that welfare guardianship powers applied for and granted are often much greater than reports have suggested are required to benefit the adult. This suggests a need for people to have a better appreciation of the needs of the adult and greater awareness of the implications of the principles.
RESEARCH ON PARTS 2 AND 3 (Chapter 4)
Research on Parts 2 and 3 aimed to explore awareness, perceptions and experiences of using these two parts of the Act. The research comprised a postal questionnaire survey of advice agencies and telephone interviews with granters of POA and applicants for IwF.
Twenty-three advice agencies (law centres, Citizens Advice Bureaux and voluntary organisations) responded to the postal survey. The majority thought they were familiar with the aims of the legislation, most felt familiar with the purpose and processes of Part 2, but fewer felt the same about Part 3. A majority had experience of people coming to them with queries regarding POA; half had experienced people seeking advice on the role of a withdrawer.
To obtain the views of POA 'granters' and IwF 'withdrawers', a telephone survey was undertaken. Although 100 people who had registered POA or applied to be a withdrawer were selected at random and invited to participate in the research, a sample of just eight suitable interviewees was obtained. This reflects difficulties with the complex sampling process required to conform with ethical and data protection demands. Nevertheless, the interviews offer some general insights into the use of Part 2 and 3.
From both the surveys, a number of themes emerged:
Opinions were divided about the available information for these Parts of the Act: some thought it was difficult to obtain and complex, others thought it ample and clear.
Parts 2 and 3 were seen to provide safeguards and protections for vulnerable people. POA, particularly, was seen as empowering, while IwF provided an easier way to manage finances, allowing access to accounts that would otherwise be frozen.
There was a general view that there needed to be greater awareness of the legislation.
Perceived limitations to the value of Part 2 stemmed partly from the complexity of the procedure.
Use of Part 3 was felt to have been limited due to low awareness, restrictions on who could be a 'withdrawer', the number and types of bank account that could be accessed, procedural complexity, and the responsibilities placed on withdrawers.
The impetus for registering POA was being able to plan for the future: it meant peace of mind for granters and families. Advice on how to grant and register POA came from lawyers.
Prompts to consider IwF included the need to manage the affairs of a relative who was becoming confused or to avoid having accounts frozen. Respondents found out about becoming a withdrawer from lawyers, CABx, relatives, or 'through the grapevine', and spoke to the OPG and their lawyers about how to make an IwF application.
There was some confusion about whether (and, if so, which) fees incurred in the application process could be recouped by the withdrawer.
While the need for an intimation period before an application could be granted was appreciated, the freezing of accounts in the interim had financial implications for the person applying to be a withdrawer.
Experiences of having the bank repeatedly check their authority and fears about committing inadvertent accounting errors were less positive outcomes.
Generally, however, being granted the authority to access their relative's funds had been positive for the withdrawers, and all would have gone through the process again.
QUALITATIVE RESEARCH ON PART 6 (Chapter 5)
This qualitative research exercise involved in-depth analysis of thirteen cases where the use of Part 6 had been considered, and an application made or alternatives pursued. Amongst the 58 people interviewed were adults, their nearest relatives or attorneys, MHOs, GPs, consultant psychiatrists, lawyers, and care staff - a range of the individuals involved in each case. The case-study approach allowed rich exploration of the perspectives of those involved through the use of semi-structured interviews. Engaging the adults themselves and achieving an interview sample entailed grappling with considerable methodological and ethical challenges. Some of the topics explored in the interviews were informed by themes emerging from the project activity to support implementation of the legislation and by the patterns of usage revealed through the monitoring exercise. The case study data, therefore, threw light on and added depth to what was being revealed or suggested by the other elements of the consultancy. Importantly, it also revealed significant fresh themes, particularly in relation to processes.
The data suggest two overlapping triggers to consider the use of Part 6: to minimise risk or to establish legitimate decision-making authority.
Beyond MHOs and consultant psychiatrists, professionals' awareness of the Act and the processes involved varied. Lay people, particularly private applicants, were on an even steeper 'learning curve'.
In local authority applications, multi-disciplinary assessment and the case conference system facilitated joint and collaborative working, which did not feature in private applications.
In their contact with the adult, assessors would seek to ascertain their present and past wishes and the extent to which these were based on informed judgement. This duality could generate various scenarios along the two dimensions of capacity to express or communicate a view and the perceived extent to which the view is based on an impaired judgement.
The principle that a person may be legally capable of making some decisions and actions but not others was generally welcomed by respondents. The sample cases fell into three assessed levels: global incapacity, partial incapacity and capacity.
MHOs have a core role in drawing attention to, and putting into effect, alternatives to an application under Part 6, but contingent factors also play a part.
Recognition that incapacity is not all or nothing did not systematically influence consideration of the powers being sought, which could be formulated outwith the discussions informing decisions to apply under Part 6 or the assessment of incapacity.
The data suggest that Part 6 is being invoked in relation to two distinct populations: one able to communicate and act, but with impaired decision-making judgement over aspects of their lives, exposing them to financial and/or welfare risks; another population who may have "global incapacities", for whom the concern is to endow an identified body or person with legitimate decision-making authority. These sometimes overlapping populations generate two different but overlapping decision-making models: one focusing on risk and its minimisation, where the emphasis is on seeking powers over; and one focused on decision-making and forward planning, which seeks to obtain powers to.
Cases where obtaining decision-making authority was the aim were initiated by private individuals (the applicant may be a local authority). Others were initiated by local authorities, who would act as guardian if no-one else was able or willing to do so.
Local authority applications were largely co-ordinated by MHOs. Private applicants worked very much on their own, possibly with the support of a solicitor or concerned professional. Co-ordination included ensuring the different reports were written within the appropriate timeframe, although sometimes difficult to achieve.
Court hearings could be experienced by non-professionals and adults as perplexing, inhibiting and stressful.
In local authority welfare applications, MHOs would attend court, informing and supporting those unfamiliar with the process. They did not, however, attend court for private welfare applications.
The study suggested practice differences relating to the appointment of safeguarders or curators; the role of independent advocates; and orders for caution.
The data highlighted interface issues both within the Act, for example between Part 6 and Part 5, and between the Act and other pieces of legislation, particularly the current Mental Health (Scotland) Act 1984.
Immediate outcomes could be direct 'substantive' changes in aspects of the adult's life, and 'procedural' or 'due process' outcomes, providing a formal legal basis for decision-making.
There appeared to be differences in practice in relation to the nature, regularity and frequency of local authority supervision of guardians and guardianship orders. The study highlighted the difficult balance to be struck between meeting the needs of financial guardians (and attorneys) for information, support and advice and the requirement to ensure financial probity.
In all thirteen cases, the principles of the legislation had been an important feature of the decision-making processes initiated under the Act. Interpretation and balancing the principles against each other could, however, be complex.
There was less evidence of consideration of the principles once an order had been granted. For example, some care managers supervising guardianships or acting as guardians seemed to have limited knowledge of the principles of the Act.
Although the legislation is 'accessible' in the sense that private individuals are not precluded from applying for an intervention order, the infrastructure and processes may not facilitate this access. Similarly, although not excluding adults, the complexity of the procedure may not enhance inclusion. There was insufficient material to indicate the extent to which the Act was accessible to, and used by, different equalities groups, for example, people from black and minority ethnic communities.
Five key themes emerged from the Part 6 case studies:
The need to extend knowledge and awareness of Part 6, including embedding an understanding of the principles beyond the assessment and application process.
The two overlapping objectives of seeking ' powers over' and powers to' raise two far-reaching questions. First, who initiates an action when the adult has incapacity but there is no immediate risk, and no-one is seeking decision-making powers on their behalf, but where decisions may be being made? Second, to what extent does the authority to have power over include a reciprocal responsibility to provide appropriate resources?
The procedural disadvantage and isolation experienced by private individuals.
The complexity and formality of the process may act as barriers to inclusion on the part of the adult and non-professionals. The associated costs may also act as a deterrent to nearest relatives seeking to be involved in the process.
Outcomes for the adult may be both concrete changes in circumstances and a more abstract but fundamental protection achieved through transparency in decision-making authority.
CONCLUSIONS FROM THE CONSULTANCY (Chapter 6)
The rich and varied evidence achieved from the different project activities suggests that the Act has been largely working as intended and yielding benefits for adults with incapacity and for those who care for and about them. But it also revealed possible legislative, procedural and practice issues which may inhibit the full realisation of the objectives behind the legislation. Some of the issues are already being addressed by the Scottish Executive in response to the findings from the consultancy and through parallel initiatives, such as the research into Part 5 and recently issued guidance in relation to Part 6. Suggestions for further research have also been presented.