THE Adults with Incapacity (Scotland) Act 2000: LEARNING FROM EXPERIENCE
CHAPTER ONE Introduction and Background
1.1 The Adults with Incapacity (Scotland) Act 2000 (AWI/the Act) is intended to modernise and improve the law to safeguard the interests of adults who are not able to take some or all decisions for themselves. The legislation has far-reaching implications for people subject to the provisions of the Act, their families and carers, estimated at potentially around 100,000 people (Scottish Executive 1999). 4 It applies to individuals who are assessed as incapable of acting, making, communicating or understanding decisions because of mental disorder or an inability to communicate caused by a physical or other disorder. The main groups to benefit from the provisions of the Act are: people with dementia, adults with a learning disability, with severe mental illness, or who have suffered a head injury, and people with severe communication difficulties caused by physical disability.
1.2 In 2002, the Scottish Executive commissioned a partnership of Alzheimer Scotland - Action on Dementia and the Scottish Development Centre for Mental Health to undertake a two-year consultancy contract to explore issues arising from the implementation of Parts 2, 3 and 6 of the Act, to monitor usage and to undertake research relating to the operation of the legislation. The project adopted the title 'Learning from Experience'. A Consultancy Steering Group was established to advise and oversee the project (see Appendix 1 for membership). This report summarises the work undertaken in the course of the consultancy, and highlights key issues and lessons to be learned from the first three years of the Act.
T HE ACT
Background to the legislation
1.3 In 1991, the Scottish Law Commission (SLC) published Mentally Disabled Adults - Legal Arrangements for Managing their Welfare and Finances (Discussion Paper No 94) in which the laws governing decisions about the finances and welfare of mentally incapable adults were examined and changes proposed. The discussion paper also included a draft bill, and a wide range of individuals and organisations responded to the Paper. The reforms proposed were radical, and formed a basis for wide-ranging debate. Taken together, the proposals, for the redefinition of incapacity, a hierarchy of provisions, a system for registration, supervision and investigation, and principles to underpin the legislation, aimed to provide a balance between empowering and protecting adults with incapacity and enabling their carers to manage their day to day welfare and financial affairs when the adult is no longer able to do so themselves. The Commission also recommended measures to provide a legal framework to authorise medical decision-making. The reforms were founded on the principles of autonomy and equity, that adults who are unable to make decisions for themselves should not be disadvantaged. At the time of the Commission's report, legislation to support decision-making for this group was fragmented, archaic and left adults with incapacity open to abuse and neglect. A subsequent SLC document, The Report on Incapable Adults (Report 151) (SLC 1995), made 152 recommendations to government to establish comprehensive legislative reforms.
1.4 Early in 1997, the then Scottish Office produced its own consultation paper, Managing the Finances and Welfare of Incapable Adults, which adopted most of the SLC's 1995 recommendations. It was not, however, until the establishment of the Scottish Parliament that the need for legislation was reconsidered. Drawing on the earlier work by the SLC and subsequent consultations, the Adults with Incapacity (Scotland) Act 2000 became the first major piece of legislation to be passed by the Scottish Parliament. It introduced a comprehensive hierarchy of provisions for making financial and welfare decisions on behalf of an adult, tailored to the level of intervention needed by the individual.
1.5 For the purposes of the Act an 'adult' means a person who has attained the age of 16 years.
1.6 In Scots law there is a legal presumption that adults have the capacity to make decisions about their own lives unless proven otherwise. This presumption may be called into question, especially where a person has an impairment of cognition and affect. However, the legislation does not consider this sufficient evidence to intervene. The title of the Act recognises that incapacity is not an 'all or nothing' concept and that many adults with incapacity can still manage some aspects of their life. An assessment of incapacity must therefore be 'decision-specific' in relation to the ability to make decisions about health, welfare or financial matters, taking into account the complexity of the decision-making involved.
1.7 The legislation defines a person as being without capacity if, at the material time, he or she is unable, by reason of mental disability, to make a decision on the matter in question. That is, if the disability is such that, at the time that the decision needs to be made, he or she is unable to understand information relevant to the decision; make a decision based on the information given; act on the decision; communicate the decision; or retain the memory of the decision.
1.8 The Act recognises that incapacity may be a temporary or permanent state; may vary over time; and that the ability to make a decision depends not only on the adult, but on the complexity of the decision to be made and the way information is presented. A mandatory Part 1 principle of the Act recognises that the way in which information is presented will impact on the ability of the individual to make decisions and requires that every effort be made to aid communication with the adult.
1.9 The supporting Codes of Practice provide broad guidelines on communication with the adult and the assessment of capacity.
1.10 The Part 1 principles state that all decisions made on behalf of an adult with impaired capacity must:
Benefit the adult.
Be the least restrictive intervention to achieve that benefit.
Take into account the past and present wishes and feelings of the adult in so far as they can be ascertained by any means of communication whether human or by mechanical aid as appropriate to the adult.
Take into account the views of the nearest relative or primary carer of the adult, and others with an interest, in so far as it is practical and reasonable to do so.
Encourage the adult to use existing skills or develop new ones.
1.11 The principles underpinning the legislation were designed to support the autonomy of the adult as far as possible. Their application is relevant in three key areas:
assessing whether or not an intervention under the Act is necessary;
assessing which intervention or interventions under the Act will be appropriate;
implementing an intervention made under the Act.
1.12 The Act establishes checks and balances to reduce the potential for abuse. All interventions must be registered with the Office of the Public Guardian (OPG). The OPG was established by the Act and provides for the Accountant of Court, a senior official in the Scottish Court Service, to assume the role of Public Guardian. Amongst its key functions, the OPG also provides supervision, support, advice and information to financial guardians or other authorised persons in managing the property and financial affairs of the adult; receives and investigates complaints in relation to those appointed as financial proxies; and consults with the Mental Welfare Commission (MWC) and local authorities on interests of mutual concern. The MWC and local authorities have a similar range of functions in relation to welfare interventions.
1.13 The Act consists of seven parts. The Scottish Executive Justice Department has overall responsibility for the implementation of the Act and specific responsibility for Parts 1, 2, 3, 6 and 7 which relate respectively to:
General matters (for example, the principles of the Act, functions of statutory authorities)
Continuing and welfare powers of attorney
Access to accounts and funds
Intervention orders and guardianship orders
The Health Department of the Scottish Executive has overall responsibility for Parts 4 and 5 of the Act. These parts are concerned with:
Management of care home residents' finances
Medical treatment and research
1.14 The Act introduces a hierarchy of provisions designed to allow decision-making in relation to the financial affairs of an adult with incapacity and/or their health and welfare. The consultancy was focussed on the operation of Parts 2, 3 and 6. The Scottish Executive Health Department commissioned a separate review of the implementation and early operation of Part 5 of the Act (Davidson et al 2004) and undertook a consultation on the Code of Practice for Part 5 (Drinkwater et al 2004). To set in context the discussions in the following chapters, the provisions, procedures and processes, as they relate specifically to Parts 2, 3 and 6, are summarised below.
Part 2: Power of attorney
1.15 Under Part 2 of the legislation people with capacity can authorise someone to have power of attorney (POA). These powers can relate to financial matters and would be referred to as financial or continuing power of attorney. The Act also introduces a new type of attorney with powers over welfare matters. It is possible to grant both continuing and welfare powers of attorney. Continuing POA can come into effect at any time, but can be continued on incapacity if the granter specifically states this. Someone granted welfare power of attorney can only act in this capacity if the granter subsequently becomes unable to manage some aspect of their welfare.
1.16 The person appointing someone with POA is referred to as a 'granter'. The person or people to whom they grant POA can be a friend, a relative, a neighbour or a professional person such as a solicitor or doctor. The 'granter' can identify one person as their sole attorney, or appoint a number of people who would act as joint attorneys.
1.17 To be able to come into effect, the POA has to be registered with the Office of the Public Guardian.
Part 3: Authority to intromit with funds
1.18 Part 3 of the legislation introduces intromission with funds (IwF), a procedure to enable a private individual to access funds on behalf of an adult with incapacity. The funds must be held solely in the adult's own name. Authority to intromit with funds is granted by the OPG to whom applications have to be submitted. The application must indicate the purpose for which the funds will be used, for example, care home charges or utility bills. Any private individual can apply for the authority to access the adult's funds, to become a 'withdrawer'. The application has to be countersigned by someone from a specified group, a councillor, teacher or minister of religion, for example. The counter-signatory has to have known the applicant for at least two years, and must also know the adult. The application must be accompanied by a medical certificate stating that the adult is incapable of managing the funds.
1.19 Once authority has been granted by the OPG the withdrawer is required to open a 'designated' account into which funds for the specified purposes will be transferred from the adult's account.
Part 6: Intervention and guardianship orders
1.20 Under Part 6 of the legislation, an application can be made to the sheriff for a guardianship or intervention order. Intervention orders are usually concerned with a one-off or time-limited action or decision to be made on behalf of an adult who is not capable of taking the action or making the decision. Intervention orders can relate to the adult's financial affairs, property and/or personal welfare. A person or office holder authorised to act under an intervention order is known as an ' intervener'. Guardianship orders are intended for longer-term help or 'continuous management'. Again guardianship orders can cover financial, property and/or welfare matters. The Act allows for both sole and joint guardians to be appointed.
1.21 Guardianship and intervention orders are granted by a sheriff following a court hearing and must be registered with the OPG.
1.22 Private individuals and professionals, such as solicitors, can apply for and be nominated as guardians or interveners but, under Part 6, local authorities also have statutory roles and responsibilities. First, local authorities must apply for a guardianship or intervention order where it is felt to be necessary and there is no one else doing so. Second, specifically in relation to welfare guardianship, the Chief Social Work Officer must be notified that an application is being made. Third, the application to the sheriff for welfare guardianship or a welfare intervention order has to be accompanied by a Mental Health Officer's (MHO's) report. These reports are concerned with the appropriateness of the order being sought and the suitability of the person named to act as guardian or intervener. Fourth, the local authority can be nominated as the welfare guardian or welfare or financial intervener. The local authority cannot, though, exercise powers of guardianship in respect of property or financial affairs.
1.23 Applications for guardianship or intervention orders have to be accompanied by two medical reports of incapacity. Applications for orders covering financial or property matters must also include a report from someone with sufficient knowledge to establish the appropriateness of the order and of the person nominated to carry out the order. All reports need to be completed within 30 days prior to the application being lodged with the court. The applications include the powers sought.
1.24 Once an application is submitted to the court, the Act enables a sheriff to appoint someone to safeguard the interests of the adult, including conveying the adult's views to the sheriff, where these are ascertainable. 5
1.25 Once granted by the court guardianship orders can be for three years, or for any other period, including indefinitely, as determined by the sheriff. In cases of financial guardianship the sheriff can require the guardians to find caution. This is a form of insurance to safeguard the adult with incapacity from loss due to the actions of someone acting on his or her behalf.
1.26 Part 6 is, therefore, designed to make it possible for interventions to be tailored to the needs of the individual, both in terms of powers granted and the period of time that the intervention may be required.
1.27 Table 1.1 summarises the different procedures available under Parts 2, 3 and 6 and the roles and responsibilities of the different participants
Table 1.1 Parts 2, 3 and 6 of the AWI: provisions, roles and responsibilities
Who can act
Supervisory/ investigative powers
Joint bank account (either or survivor specified)
Continuing powers of attorney
Welfare powers of attorney
A continuing power may be granted to a 'person' (a private individual or legal persona. A welfare power can only go to a named individual.
Appointments may be joint or separate (with option of appointing substitutes)
OPG (continuing POA); local authority and MWC (welfare POA)
Welfare intervention order
Private individual or local authority
OPG (finance); local authority and MWC (welfare)
Financial guardianship order
Welfare guardianship order
Private individual (joint or separate); local authority (welfare guardianship only)
OPG (finance) local authority and MWC (welfare)
National Implementation Steering Group
1.28 In May 2000, the Scottish Executive Justice Department convened the National Implementation Steering Group, comprising representatives from relevant professional associations, public and voluntary agencies. The remit of the group was to provide feedback on issues of concern relating to implementation and training in the various professional fields. Early in 2003, the future of the group was considered in the light of the work established through the consultancy. It was agreed to discontinue the group, but where specific aspects needed in-depth or detailed consideration, the Justice Department would set up meetings or small working groups, with appropriate experts, and, if there was sufficient interest, would consider holding an annual conference to discuss issues arising from implementation of the Act.
Aims of the consultancy
1.29 The specific aims of the consultancy were four-fold.
To assist the process of implementation of the Actby reviewing the information (including the relevant Codes of Practice) and support available and acting as a sounding board for individuals and agencies.
To analyse the process of implementation of the Act by describing the pattern and process of implementation through monitoring and research.
To analyse the operation of specific provisions of the Act through monitoring and research to examine the usage of those provisions.
To describe the impact of the Act from feedback from a range of stakeholders and from research findings.
1.30 To meet these aims the consultancy consisted of three interlinked elements: implementation, monitoring and research.
1.31 The implementation element comprised:
A review of information and support available to those interacting with the legislation, including the development of a network of stakeholders to provide a focal point for views and comments, from small procedural points to more substantive strategic issues.
A review of the codes of practice for Parts 2, 3, and 6 and the code for local authorities operating under the Act.
Engaging in the resolution of difficulties or queries relating to the operation of the legislation.
Updating the Scottish Executive Adults with Incapacity Act website.
1.32 The monitoring component of the consultancy included:
Liaison with the Scottish Court Service and the OPG with a view to obtaining data on usage.
Early liaison with local authorities and the MWC to map monitoring at a local level.
Consideration of mechanisms for disseminating information on the use of the legislation.
Identifying information that was not being routinely collected.
Producing a monitoring report summarising usage in the first three years of the Act.
1.33 In broad terms, the research element of the consultancy included consideration of:
The impact of the legislation on adults with incapacity, their families and associated professionals.
The operation of the Act in relation to specific interventions.
An evaluation of the Act in relation to equality considerations.
The research component comprised two projects: a study of the awareness, perceptions and experiences of Parts 2 and 3 of the Act; and in-depth analysis, through case studies, of processes and outcomes following consideration of an application under Part 6. The design of both studies, which were largely qualitative, were informed by, and elaborated upon, early insights secured through the implementation and monitoring elements of the consultancy.
Structure of the report
1.34 The consultancy was dynamic in purpose: the aim was to feed back to the Scottish Executive issues and trends, as they emerged from the different elements, to assist on-going policy making and practice developments. This report is a summary of that process and the key findings. Other activities, including, for example recommendations in relation to the codes of practice and website development, and issues around the availability and scope of data on use of the Act, are not described in detail.
1.35 Chapter 2, drawing on the data provided by the OPG, summarises the patterns of usage of Parts 2, 3, and 6 of the Act. This is followed, in Chapter 3, by an account of the implementation element of the consultancy and a discussion of the emerging findings. The research studies undertaken into the operation of Parts 2, 3, and 6 of the Act are described in Chapters 4 and 5. The concluding chapter draws out key themes from across the three areas of consultancy activity.