Publication

The Adults with Incapacity (Scotland) Act 2000: Learning From Experience

Published: 28 Oct 2004

This report presents findings from a project examining the operation of Parts 2, 3 and 6 of the Act, which explored implementation, usage levels and people's experiences of using the legislations.

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The Adults with Incapacity (Scotland) Act 2000: Learning From Experience
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THE Adults with Incapacity (Scotland) Act 2000: LEARNING FROM EXPERIENCE

CHAPTER TWO MONITORING PARTS 2, 3 AND 6 OF THE ACT

INTRODUCTION

2.1 A key component of the Consultancy was the regular monitoring of usage of Parts 2, 3 and 6 of the legislation. To undertake this monitoring, the consultancy required access to summary reports generated from data that are routinely collected by the Office of the Public Guardian (OPG). However, the OPG's system is designed for workflow and case management in the daily functions of that agency and for its own organisational monitoring, and was not set up with a specific intention to generate additional statistics. By its nature, the OPG's data system is, therefore, not static: changes relating to individual cases, as they progress over time, can cause adjustments to figures that had been generated for a previous period because the system overwrites the older information with new details. Nevertheless, this only occurs with a tiny number of cases, so the monitoring data do provide a reliable illustration of patterns and trends over time, rather than the final picture for any one period.

2.2 This chapter presents a summary analysis covering the first three years of operation of the legislation. This includes Part 2, Power of Attorney (POA) and Part 3, Intromission with Funds (IwF), which came into effect in April 2001. It also covers Part 6, implemented a year later in April 2002, which makes provision for Guardianship and Intervention Orders.

SUMMARY OF USAGE

Power of attorney

2.3 Table 2.1 summarises the numbers and types of POA registered by financial year. This reveals that, over the three years since implementation, well over 30,000 POAs have been registered with the OPG. Under the legislation, once registered, a continuing POA can come into effect at any time, but a registered welfare POA can only come into effect when the granter no longer has capacity to manage some aspect of their welfare. The numbers of POA registered will, therefore, be higher than the numbers that are operational at any time.

2.4 Over this period there has been a noticeable change in the pattern of types of POA registered. In the first year of operation, continuing or financial POA comprised 70% of registrations, in the third year of operation this had dropped to fewer than 60%. Over this same time there was an increase in the number of combined continuing and welfare powers of attorney registered, from just over one-quarter to 40%. The number of registrations of welfare-only POA was small but gradually rising. The patterns suggest that people are becoming increasingly aware of the broadened range of options now available.

Table 2.1 Number and types of power of attorney registered by financial year

Type of power of attorney

Financial Year (%)

Total

2001-2002

2002-2003

2003-2004

Continuing and welfare

1448
(26)

3508
(34)

5820
(40)

10776
(35)

Continuing

3947
(71)

6382
(62)

7576
(52)

17905
(59)

Welfare

197
(4)

468
(5)

1097
(8)

1762
(6)

Total

5592

10358

14493

30443

Percentages may not total 100 due to rounding.

Intromission with funds

2.5 Over the three years of operation, the number of applications for IwF that have been granted has increased but remains under 200 per year (Table 2.2).

Table 2.2 Number of applications for intromission with funds granted by financial year

Financial year

Number granted

2001-2002

105

2002-2003

157

2003-2004

171

Total

433

Guardianship and intervention orders

2.6 In the two-year period since Part 6 came into effect, the number of guardianship orders granted doubled from under 300 to just under 600 per annum (Table 2.3). The pattern of types of order also changed. In the first year, just under three quarters of guardianship orders were for welfare provisions only, under 20% were for financial guardianship, and less than 10% were combined welfare and financial powers. In the following year, welfare guardianships reduced substantially, with an increase in both financial-only and combined orders being granted. To an extent, the initially high proportion of welfare guardianships may reflect the transitional period during which guardians who had been appointed under the Mental Health (Scotland) Act 1984 applied for appointment under the new legislation when their previous appointments ended. Nonetheless, as with power of attorney, the pattern suggests people are beginning to make fuller use of the range of provisions.

2.7 Over the same period, the number of intervention orders that were granted increased (Table 2.3), but the total numbers remain low. In both years financial orders predominated.

Table 2.3 Number and types of guardianship and intervention orders registered by financial year

Type of order by financial year (%)

Guardianship Orders

Intervention Orders

Type of order

April 2002- March 2003

April 2003- March 2004

April 2002- March 2003

April 2003- March 2004

Financial and welfare

28
(10)

120
(20)

1
(2)

15
(9)

Financial only

50
(17)

200
(34)

49
(88)

135
(81)

Welfare only

210
(73)

273
(46)

6
(11)

17
(10)

Total

288

593

56

167

Percentages may not total 100 due to rounding.

PATTERNS OF USAGE BY LOCAL AUTHORITY AREA

2.8 To compare usage of Parts 2, 3 and 6 of the legislation in different parts of the country rates per 100,000 population aged 16 years and over ('per 100,000 adults') 6 in each local authority area were calculated. This revealed substantial variations across Scotland.

Power of attorney and intromission with funds

2.9 Scotland-wide the number of registered POA per 100,000 adults has increased over the three-year period from 135 to 348. There are though consistent and substantial variations between local authority areas. Omitting Orkney, nan Eilean Siar, and Shetland, where the low absolute numbers may distort the overall pattern, people in Argyll and Bute, Perth and Kinross, Angus and East Renfrewshire have been consistently high users of POA across the three years. At the other end of the scale, people in North Lanarkshire, West Dunbartonshire, West Lothian and Falkirk are amongst the lowest users. In 2003-2004, for example, the rate of powers of attorney registered per 100,000 adults was 649 in the East Renfrewshire local authority area, compared with a rate of only 108 in the North Lanarkshire area. Factors such as the use of power of attorney prior to the new legislation, the demographic structure and levels of deprivation or wealth may be among the explanations for the degree of variation.

2.10 The small absolute numbers for intromission with funds granted make the geographic distribution much less consistent or clear cut, within and across the years.

Guardianship and intervention orders

Guardianship orders granted

2.11 Comparison of the rate of guardianship orders, of all types, per 100,000 adults also revealed wide variation in usage between local authority areas. In the second year of operation, for example, as indicated in Table 2.4, against a Scotland-wide rate of 14 orders per 100,000 adults, the rates between local authority areas ranged from four to 28 orders. Areas with comparatively high rates of usage included Argyll and Bute, Angus, Highland and West Lothian. 'Low' usage rates were found in the Stirling, Glasgow City and East Ayrshire local authority areas.

2.12 In addition to transitional issues a number of other factors may be at work to account for such wide disparities, for instance, local authority policies relating to when to use the legislation, and other local factors such as the demographic profile for the area, or a hospital re-settlement programme.

2.13 The data also begin to suggest variations in the patterns of 'types' of guardianship orders between different local authority areas. The small absolute number of cases in some local authority areas, together with transitional issues may distort the pattern to some extent, but focusing on the second year of operation illustrates possible trends. For example, in 2003-2004

the greatest users of combined welfare and financial guardianship orders were in Renfrewshire local authority area, where just under 60% of orders were combined. At the other end of the scale, no combined orders were granted in eight local authority areas. Welfare-only orders show a similarly wide variation in usage: ranging from under one-quarter of all orders granted in nine local authority areas (including five areas where there were no welfare orders granted), to over 70% of orders in West Lothian and Scottish Borders. Financial-only orders were granted in the majority of local authority areas, but again the range extended from less than 10% of all orders in three areas, to over one half in seven.

Table 2.4 Number of guardianship orders per 100,000 population aged 16 years and over by local authority area of adult and by financial year

Number of guardianship orders, by local authority area of adult per 100,000 population aged 16 years and over

2002 - 2003

2003 - 2004

Aberdeen City

12

16

Aberdeenshire

5

15

Angus

8

23

Argyll & Bute

15

28

Clackmannanshire

3

10

Dumfries & Galloway

10

17

Dundee

6

14

E. Ayrshire

7

9

E. Dunbartonshire

2

13

E. Lothian

7

10

E. Renfrewshire

1

10

Edinburgh

6

14

Eilean Siar

9

14

Falkirk

8

10

Fife

5

18

Glasgow C

5

8

Highland

21

26

Inverclyde

6

10

Midlothian

2

11

Moray

13

11

N. Ayrshire

7

19

N. Lanarkshire

3

7

Orkney

6

6

Perth & Kinross

18

18

Renfrewshire

2

10

Scottish Borders

7

16

Shetland

6

0

S. Ayrshire

9

21

S. Lanarkshire

5

14

Stirling

10

4

W. Dunbartonshire

7

17

W. Lothian

24

24

Scotland Total

8

14

Intervention orders granted

2.14 The small number of intervention orders makes comparison between areas difficult. The data do though suggest that there has been fairly wide variation in usage. In 2003-2004, for example, against a Scotland-wide total of 4 per 100,000 adults, the rate ranged from either zero to one in five local authority areas (excluding Orkney), to 28 in one area. Fife and Stirling local authority areas generated the highest proportions of intervention orders (of all types) (only in Shetland was the rate higher, a figure which may be distorted by the small numbers involved). The local authority areas where less frequent use was made of intervention orders include East Renfrewshire, Aberdeen City and Dundee.

STATUS OF APPLICANTS AND PROXIES

2.15 Focusing on the status of the applicant, that is, their relationship to the granter or adult, and whether acting on their own or jointly, the data revealed the roles played by private individuals and local authorities.

Power of attorney and intromission with funds

2.16 Whether acting alone or jointly, with financial and/or welfare powers, relatives comprised over 80% of nominated attorneys in all three years since the legislation became operational. Over the same period, friends comprised around 5% of sole attorneys and a slightly lower proportion of joint attorneys. Friends tended to be appointed as welfare POA. Professionals may be marginally more active as joint attorneys than as sole proxies, and to be more active in financial than welfare matters.

2.17 Relatives consistently comprised the vast majority of people applying for IwF.

Guardianship orders

Applicants

2.18 Over the two years since the implementation of Part 6, there was a shift in the pattern of applicants for guardianship. By total number of applications, in the first year local authorities comprised just under 60% of applicants, and relatives around 30%, with professionals largely comprising the remainder. In the second year, relatives overtook local authorities: 45% of applications came from relatives and 43% from local authorities.

2.19 Table 2.5 indicates the status of the applicant in percentages by type of guardianship order for each of the two years of the operation of Part 6. Relatives were most active as applicants for financial guardianship and joint financial and welfare orders in both years. The pattern for local authorities appeared to change with increases over these two years in local authority applications for combined financial and welfare and financial-only orders.

2.20 Professionals appear to have been involved in about 10% of guardianship applications, predominantly, but not exclusively, for financial guardianship. Friends rarely make an application for guardianship.

Table 2.5 Status of applicant by type of guardianship order by financial year

Status of applicant as % by type of guardianship and financial year

2002 - 2003

2003 - 2004

Status of applicant
(Total number)

Fin & Welfare
(48)

Fin only
(69)

Welfare only
(224)

Total
(341)

Fin & Welfare
(150)

Fin
(226)

Welfare
(294)

Total
(670)

Friend

0

1

0

0.3

2

1

1

1

Relative (inc. spouse)

77

67

8

30

72

66

15

45

Local authority

17

9

84

59

21

14

76

43

Professional

6

22

9

11

5.0

18

7

11

N/a

0

1

0

0.3

0

0.4

1

3.0

Percentages may not total 100 due to rounding.

Sole guardians

2.21 The status of people appointed as sole guardians seems to be changing over time - reflecting the changing pattern of orders granted. In the first year, local authorities comprised just under two thirds of sole guardians, compared with just under 25% of relatives and just over 10% of professionals. As the proportion of welfare guardianship orders has declined, so too has the proportion of cases where the local authority is sole guardian. In the financial year 2003-2004, there were marginally more relatives acting as sole guardians (37%) than local authorities (35%). Professionals too were playing an increasing role as sole guardians, comprising over one quarter of the total.

2.22 By type of order, relatives were predominantly the sole guardians in cases of joint financial and welfare guardianship orders and in half of the cases where a financial-only order was granted. Local authorities were predominantly the sole welfare guardian, though this appeared to be decreasing. Professionals were most active as sole financial guardians.

Joint guardians

2.23 Joint guardianship presents a different profile to sole guardianship. Relatives are much more active as joint guardians than either local authorities or professionals, across all types of order. This though may be shifting over time. The data for the second year since implementation of Part 6 indicate a drop in the proportion of relatives as joint guardians and an increase in the proportion of local authority and professionals as joint guardians.

2.24 There may also be change over time in relation to particular types of order. In the first year, relatives comprised 70% of joint guardians for combined financial and welfare orders. In the second year this had dropped to under half. Over the same period there was an increase in the proportion of local authorities nominated as joint guardians in cases of combined financial and welfare orders. The proportion of professionals as joint guardians also increased in relation to combined orders. For welfare-only guardianship orders the majority of joint guardians were relatives: local authorities are rarely joint welfare guardians.

2.25 Table 2.6 compares the pattern of sole and joint guardians appointed, by type of order over the period 2003-2004.

Table 2.6 Status of sole and joint guardians appointed by type of guardianship order
for the financial year 2003 - 2004

Number of sole and joint guardians by type of guardianship order 2003 - 2004 (%)

Sole guardians

Joint guardians

Status of guard-ian

Fin & Welfare

Fin only

Welfareonly

Total

Fin & Welfare

Fin

Welfare

Total

Friend

1
(1.5)

1
(0.5)

0

2
(0.4)

2
(2)

1
(4.55)

4
(9)

7
(4)

Relative (inc.
spouse)

58
(89)

106
(51)

35
(13)

199
(37)

54
(45)

20
(91)

37
(86)

111
(60)

Local authority

0

0

188
(72)

188
(35)

28
(23)

0

1
(2)

29
(16)

Professional

6
(9)

100
(48)

39
(15)

145
(27)

34
(29)

1
(4.5)

1
(2)

36
(20)

N/a

0

0

1
(0.4)

1
(0.2)

1
(1)

0

0

1
(0.5)

Total

65

207

263

535

119

22

43

184

Percentages may not total 100 due to rounding.

Intervention orders

Applicants and interveners

2.26 In both financial years, over one-half of applications for intervention orders were made by relatives and between one third and 40% by local authorities.

2.27 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%, and that of professionals also increasing. Given the small numbers involved, particularly in the first year of operation, the patterns may be particularly fluid.

2.28 On the basis of the higher numbers of intervention orders granted in 2003-2004, it seems that relatives were particularly active in relation to financial intervention orders; local authorities comprised a higher proportion of interveners in relation to combined financial and welfare orders and welfare-only orders.

CHARACTERISTICS OF USERS OF THE ACT

2.29 A sense of who has been using the different sections of the legislation can be gauged from an analysis of the age, sex and, where available, the ethnic group of the adult. The age and minority ethnic groupings are based on the categories used by the OPG.

Age of granter or adult with incapacity

2.30 The age profiles of granters of POA and adults for whom IwF has been registered tend to be older: over 80% of both granters and adults subject to the legislation were aged over 60 years. In the first two years of operation of Part 3, this age group in fact comprised over 90% of adults. This compares with around 70% of adults for whom a guardianship or intervention order had been granted.

Sex of granter or adult with incapacity

2.31 Across all years and all procedures, women represented approximately two thirds of all granters and adults with incapacity, except in relation to IwF, where women comprise around three quarters of people who have a withdrawer.

Minority ethnic group of granter or adult with incapacity

2.32 Information on minority ethnic group was only available in relation to POA and IwF, and because obtained voluntarily the data are incomplete. The available data suggested that, over the three years these parts of the Act have been operational, non-white users comprised less than half a percent of granters of POA and only one adult from a non-white background had a withdrawer. In part, this may reflect the age profiles of the minority ethnic population: although minority ethnic groups comprise 2% of the Scottish population, they have a younger age distribution than white groups. Nonetheless, the data do suggest an under-representation of non-white groups.

THE EMERGING PICTURE

2.33 A number of trends emerge from this analysis of usage of Parts 2, 3 and 6 of the legislation.

2.34 First, the picture is dynamic: even over this comparatively short period changes were becoming evident. As people become more aware of the extended range of options available, and perhaps also more familiar or confident with the procedures involved, so the patterns of usage are changing.

2.35 Second, some procedures were not being used extensively, especially IwF and intervention orders. Yet these procedures would seem to offer less restrictive options, either for someone who may lose capacity in the future, or for an adult who has already lost some capacity.

2.36 Third, what also comes across from the data are the wide variations across the country in the use of the different procedures. This has related as much to POA and IwF, which reflect the private decision-making of individuals, as to guardianship and intervention orders, where the role of local authorities especially may influence usage levels. On-going monitoring may identify whether this degree of variation has been a product of a learning curve or reflects more substantial issues of population structure, socio-economic status or local authority policies relating to usage of the Act. Over time it may become possible to develop area profiles based on the relationships between the use of guardianship and intervention orders and also with the use locally of power of attorney and intromission with funds.

2.37 Looking at who has been involved as applicant or 'proxy', the fourth finding is the key role played by relatives across all of the procedures. This may suggest a target group for future awareness-raising initiatives. But it raises further questions concerning the levels of support available, both to assist relatives initiating these processes and once they are active as a proxy.

2.38 What also is apparent from the data is the profile of the granters and adults with incapacity: this has been a predominantly female, elderly and white population. In some respects this is not surprising. The data do, however, suggest the scope for raising awareness of provisions, such as POA among younger people and of all these procedures among people from black and minority ethnic communities.

ON-GOING MONITORING

2.39 The Consultancy had a role to consider and agree with the Justice Department, the Scottish Courts Service and the OPG future dissemination of monitoring data, with particular reference to the level of detail, frequency and format of this information. A small group of people, with experience of monitoring and disseminating numerical information drawn from complex data-sets, was convened to assist the development of a monitoring strategy.

2.40 Any such strategy has to take into account, first, that different groups, affected by or with obligations under the legislation, will potentially have an interest in the way the Act is working. Second, the routes through which people find out about this will differ. Third, any approach has to be accessible, in terms of language, format and clarity, practicable and cost-effective.

2.41 Following exploration of a number of different options, it was suggested that, in the short to medium term, to achieve the widest circulation in the most effective way, established and existing routes should be used to disseminate information on usage of the Act.

  • Regular downloadable updates could be provided on the Scottish Executive's Adults with Incapacity (Scotland) Act website and through links on the OPG's website, at, for example, six-monthly intervals. For those without web access, hard copies of reports could be available on request from the Justice Department.

  • The regular MHO Newsletter, published by the Scottish Executive, which has an extensive circulation, would provide another good route to disseminate information to a target group.

SUMMARY: KEY POINTS

An analysis of data routinely collected by the OPG, for the first three years of operation of Parts 2 and 3, and the first two years of operation of Part 6 of the Act, reveals the following points.

  • This is a dynamic picture: even over this comparatively short time period changes were evident.

  • Some of the newer procedures, particularly intromission with funds and intervention orders were not being used extensively.

  • There were the wide variations across the country in the use of the different procedures. This relates as much to power of attorney and intromission with funds, which reflect the private decision-making of individuals, as to guardianship and intervention orders, where the role of local authorities in particular may influence usage rates.

  • Relatives clearly play a key role as applicants and proxies across all of the procedures.

  • The profile of the granters and adults with incapacity has been of a predominantly female, elderly and white population.