Publication - Research and analysis

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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Contents
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 FIVE RESEARCH ON PART 6 OF THE ACT

introduction

5.1 Issues raised in the course of the implementation stage of the consultancy relating to the operation of Part 6 of the Act informed some the aims, objectives and study design of the research into guardianship and intervention orders. Based on thirteen in-depth case studies, the research provided an opportunity both to reflect upon a number of issues and to explore in greater detail, from the different perspectives of those involved, aspects of the process, such as assessment and decision-making, and the immediate outcomes for the adult with incapacity.

5.2 The three aims of the research were to:

  • identify the factors informing usage, processes and outcomes relating to the implementation of Part 6;

  • describe the perspectives and experiences of all those involved in considering an application, making an application and putting an order into effect;

  • draw from these accounts generalisable statements relating to policy and practice.

5.3 To meet these aims the research on Part 6 had the following objectives:

  • to identify the determinants which inform usage;

  • to describe the infrastructure issues informing usage;

  • to explore how assessment and decision-making processes inform particular courses of action;

  • to analyse the ways in which the legal procedures and processes meet the objectives of the Act;

  • to examine the immediate outcomes resulting from the process;

  • to outline possible issues arising from the interface between the Act and other relevant legislation.

SCOPE AND DESIGN OF THE RESEARCH

5.4 The focus of the research was on the processes and outcomes in relation to the consideration of an application for guardianship or for an intervention order - including welfare, financial, and combined financial and welfare provisions. To obtain the perspectives of the range of people involved in these processes a qualitative, case study approach was used. A small sample of cases, in three local authority areas, was identified for intensive study. In each case, the aim was to obtain the views and experiences of the adult, their nearest relative or people significant to the adult, the welfare or financial guardian/intervener, the Mental Health Officer (MHO) undertaking the assessment under the legislation, the medical assessors (general practitioners and consultant psychiatrists), legal advisors, and appropriate others involved in the process.

5.5 Semi-structured interview schedules were designed around a core set of questions covering the different stages of the process, from initial consideration of an application, to assessment and decision-making, submission of an application, court processes and immediate outcomes. A briefer version of the schedule was developed to enable, where possible, the adult with incapacity to participate. The design of the schedules allowed core themes to be explored, but enabled each person to express their own views in their own terms and according to their particular role in the process. The interview responses were analysed using a qualitative data analysis package, which assisted with the identification of key themes.

Sampling

5.6 Cases were selected from three local authority areas, which had been chosen on the basis of two criteria: broad patterns of usage of Part 6 of the Act; geographic spread across Scotland and type of area (rural, mixed/suburban and urban areas).

5.7 The initial aim was to recruit a sample of 20 people, including 15 people for whom an application for a guardianship or intervention order had been made and a further five people where an application under Part 6 was seriously considered (for example a case conference held) but an application was not pursued.

5.8 A two-step process of case identification was developed.

  • Step 1: the lead AWI officer in each of the three local authority areas was asked to provide brief details of twelve anonymised cases on a standardised 'case list'. The cases were randomly selected from all completed cases where action under Part 6 had been considered or pursued over the period April 2002-March 2003.

  • Step 2: on the basis of the 'case lists', the researchers aimed to select a sample which included a range of different types of actions and different causes of incapacity.

Obtaining consent to participate

5.9 Formal written consent or, as appropriate, the agreement of a nearest relative or welfare guardian with the relevant authority, was sought in each case. A covering letter, information sheets and consent forms were designed for the adult and for appropriate proxies. To ensure the confidentiality of those who subsequently chose not to take part the first approach was made either by the Mental Health Officer involved in the case or a care manager. Consent forms were then sent directly to the researchers. Meetings were held in each area with the lead officer and/or the relevant MHOs or care managers to discuss the purpose and design of the research and to explain consent procedures.

The final sample of cases

The sample of cases

5.10 The final sample of cases related to thirteen adults and generated a total of 58 interviews. In ten of these cases a guardianship or intervention order was granted and in two cases alternative avenues were pursued. In the remaining case, the initial discussions concluded in consideration of power of attorney, rather than an action under Part 6, although subsequently a financial guardianship order was pursued. Of the 13 cases, two local authorities accounted for six cases each. Only one case was recruited from the third local authority.

5.11 The sample included adults with learning disabilities, dementia, acquired brain injury, mental health problems and those with a combination of physical and other disabilities. It included six women and seven men whose ages ranged from 16 years to 93 years. A summary of each case is outlined in Appendix 5. Nearest relatives were the applicants in three cases where an order under Part 6 had been pursued. In the remaining nine cases the local authority was the applicant.

5.12 The range and number of people interviewed reflected the characteristics of each case. In several cases, the adult or their nearest relative indicated that they did not want the researchers making contact with particular professionals or individuals. In one case a professional refused to take part. Table 5.1 summarises the range of people interviewed.

Table 5.1 Range of people interviewed

Role in the process

Numbers interviewed

Adult

6

Nearest relative/significant other

7

Financial attorney

1

MHO

13

Consultant psychiatrist

6

GP

7

Private solicitor

4

Safeguarder/Curator ad litem

2

Social worker/care manager

7

Care home staff/managers

3

Supervising MHO

1

Other professional

1

Total

58

Issues arising from the sampling

5.13 The size of the sample is clearly smaller than the 20 it was hoped to recruit. This was due largely to practical difficulties arising through the use of 'gatekeepers'. In one local authority, competing demands on the MHO's time made it difficult for them to approach people on behalf of the research. In the other areas, time demands on MHOs and care managers meant there was a delay before they could approach the adults or families concerned with the consent papers. A number of people when approached declined to take part. The time taken to identify and approach substitutes further delayed the process. As a result, the recruitment of even this smaller number of cases took much longer than had been anticipated.

5.14 The research raised a number of ethical issues, specifically, for instance, establishing that an adult is making an informed decision to consent to research, that they understand the purpose and implications and retain this information. The relative nature of incapacity suggests that although an adult is unable to make informed decisions relating to their financial affairs or some aspect of their welfare, it cannot be supposed that they are unable to make an informed decision about their participation in research. Difficulties, however, may arise if there are doubts as to the adult's capacity to consent and no-one else has the legal authority to agree on their behalf. Guardians, for example, may not have specifically sought this power.

5.15 In the majority of study cases a nearest relative was able to agree on behalf of the adult. Additionally, the adults interviewed for the study indicated both prior to, and at the beginning of, the interview that they were prepared to be interviewed. Several also indicated that they did not want certain people to be contacted as part of the research, suggesting that they did have an understanding of the implications.

TRIGGERS TO CONSIDERING USING THE ACT

5.16 Across the sample, reasons for pursuing an intervention under Part 6 fall into two broad, and overlapping groups: to protect the adult from immediate risk; and to establish legitimate decision-making authority over the adult's current and future financial and/or welfare affairs.

Protecting the adult/risk minimisation

5.17 Clearly, the interests of the adult with incapacity run throughout all actions under the legislation, or where alternatives are sought. However, in some cases the trigger to an action under the Act was the immediate risks to which the adult was exposed. In these cases, legal authority was sought to make decisions to minimise the assessed risks. Examples include: authorising the adult's move to a new home; to give formal carers (for instance, nursing home managers) the legal authority to prevent someone leaving accommodation inappropriately or convey someone back if they abscond; to obtain legal backing to ensure that an adult, otherwise reluctant to engage with services, accepts support to enable them to stay in their own home; or to ensure the appropriate management of an adult's finances, either because they have substantial resources or for debt management.

Establishing decision-making authority

5.18 In other cases the impetus came less from immediate risks to which an adult might be exposed than from the need to formalise the decision-making authority of nearest relatives through their appointment as guardians. In the broadest sense, the trigger in these cases was to empower relatives. But empowerment has both a positive and negative dimension. As a positive step, nearest relatives sought to acquire the legal authority to make decisions on behalf of an adult with incapacity - both in terms of day-to-day decision-making (including being consulted on health care or treatment decisions) and planning for the future.

5.19 However, this authority was also sought by some nearest relatives as a way of redressing the perceived power imbalance between themselves and agencies and professionals involved in the adult's care. In three cases, where nearest relatives had applied to be welfare guardians, the spur came from their perceived negative experiences of previous medical or social work decision-making in relation to the adult, and a desire to have some authority over future decisions.

5.20 Another 'negative' trigger was the need to invoke the law in the face of the apparent intransigence on the part of other bodies. In one case, a financial intervention order was obtained to try to obtain access to a bank account held by a bank in England that refused to acknowledge the authority of the adult's financial attorney.

STARTING THE PROCESS

Knowledge base

5.21 To start a process presupposes knowing about it in the first place. A number of the cases in the research project were among the first undertaken in a particular geographic area, or the first experienced by, for example, a GP or a lawyer. As a result, a lack of familiarity with, and understanding of, the process of applying for an intervention or guardianship order, is likely to reflect the comparative newness of the legislation at that time. To get a sense of how much people understood about the process it is also necessary to distinguish between the different parties involved.

Professionals

5.22 Among the professionals, MHOs were perhaps the most knowledgeable about the Act and the processes to be followed. Others, including solicitors and GPs. would look to the MHO for advice. However, at this early stage, several of the MHOs reported feeling unfamiliar with the process, or only marginally ahead of the game:

"People always tend to look to the MHO for guidance. It was only a two-day training course that made me more expert than them - and I had read it [the Act]."

5.23 Consultant psychiatrists appeared familiar with their role under the legislation. GPs, however, were less clear and less comfortable when approached to provide a second medical opinion. One GP, for example, had been "surprised" to find they actually had a role, and several reported having to read up on the Act when approached to make an assessment. A number queried whether as GPs they were even necessarily the best people for the job, either because they felt it required specialist skills to assess mental capacity, or because they did not feel they would necessarily know the adult well enough to make a judgement. Private lawyers interviewed were also aware of being on a learning curve with regard to the requirements of the legislation. Both lawyers and GPs felt that the infrequency with which they were referred or handled cases (at that time) made it difficult to build up expertise.

5.24 The comments of two MHOs from one area suggested that a combination of limited training and a perceived ambiguity in the local authority's own position as to when and when not to use the Act could lead to someone being referred too rapidly by social workers or care managers for an assessment under Part 6.

5.25 Particular training issues may arise in relation to young adults. A lack of awareness of the legislation among children's and young people's services may mean that when someone reaches 16 years old the processes are not in place to ensure that someone has been authorised to make decisions for them.

Non-professionals

5.26 In cases where the local authority was the applicant, nearest relatives, including those who would subsequently be guardians, largely learned about the Act and the process of applying from the MHO. For 'untrained' non-professionals, particularly private applicants, the 'learning curve' could be even steeper than that for professionals. Lay people were largely reliant on their own research skills and/or the expertise and, in the absence of expertise, the willingness to learn among professionals, for example, with a supportive community psychiatric nurse. While potentially 'empowering', the comments from interviewees suggest how isolated and under pressure people could feel. One nearest relative, applying to be welfare and financial guardian, commented:

"I've had no support or help from anybody. I had to investigate it all myself, and I still think I know more about it than anyone in [local authority], apart perhaps from the MHO involved…. Afterwards I realised the social work service would have done the whole thing for you. I did it totally alone…. [T]here should have been resources given to local authorities or voluntary agencies to give proper training to users."

REFERRAL MECHANISMS

Local authority-led and private-led processes

5.27 In the majority of cases where the local authority took responsibility for steering the process, the starting point tended to be a referral from a social worker or care manager to an MHO service manager or District MHO. The senior MHO either retained the case or allocated it to another MHO. In one case, for example, the adult's nearest relatives were discussing the possibility of obtaining guardianship with the adult's social worker, who raised this with the District MHO for the area, who then progressed the application.

5.28 MHOs take responsibility for obtaining medical reports and co-ordinating case conferences. In one case, however, 'referral' to the GP was via the adult and their paid carer who presented the papers to him in the course of a surgery appointment. As the GP commented,

"I don't think that turning up for a normal appointment with the form is really the right way to go about it. I don't think they really knew how to approach it."

The GP concerned took the papers away for consideration before completing the forms.

5.29 In private applications it is the nearest relative (as applicant), their solicitor, or, in one case, a health care practitioner assisting the nearest relative, who made the 'referral' to the social work and medical assessors. One private applicant described their experience:

"I had to source all the specialists. I saw the GP, he'd never done one before, I contacted the psychiatrist, the MHO. I had to write to them all. The psychiatrist only did it as a favour really."

5.30 Difficulties could be experienced identifying relevant people, either because it was not clear whom should be contacted, or because people were not available. In one instance the professional assisting the nearest relative described writing letters to "four or five" different people in the social work department before an MHO was identified. In another case, an initial approach to the general psychiatric hospital for a consultant's report resulted in "no take-up there".

5.31 As indicated above, private applicants were working very much on their own, their comparative isolation almost intrinsic to the application pathway. Local authority applications start from a case conference at which the appropriateness of guardianship or an intervention order is part of a multi-disciplinary discussion. Private applications start from a referral to an MHO and forms being sent to medical assessors "sourced" by the applicant. As discussed in the following section on assessment, the joint working that the case conference process builds in is not extended to private applications.

Issues of geography

5.32 In two cases, for different reasons, more than one local authority was involved in the process. In one, the MHO, attached to a specialist health care unit where the adult was a patient, facilitated the application for guardianship. The health care unit provided a Scotland-wide service. Prior to the order being granted, the adult had been placed in a nursing home under Section 18 Leave of Absence of the Mental Health (Scotland) Act 1984. The nursing home placement was funded by the local authority for the area where the adult had lived prior to admission to the unit. Responsibility for supervising the guardianship order was transferred to an MHO in a third local authority covering the area in which, nursing home was located.

5.33 In the other case, one local authority drafted in an MHO from another area to undertake assessments in relation to a number of people moving from a hospital to homes in the community. The hospital was located in a third local authority area, and hearings had to be held in the sheriff court covering that area.

5.34 Although very specific, these cases draw attention to important issues that may arise in other contexts. In the first case described above, the rationale behind the local authority in which the specialist unit was based making the application was one of efficiency. This avoided MHOs from across Scotland having to come to the unit to undertake assessments and initiate applications in relation to people with whom they may have been unfamiliar. It did, however, raise legal and organisational 'jurisdictional' issues.

  • A safeguarder appointed in the first case queried the appropriateness of the hearing being held in the sheriff court for the area in which the specialist unit was based, given that the adult was no longer resident within this area.

  • If someone moves from their home, to a national unit in a second area, and subsequently moves to long term care in a third area, this may raise the question for local authorities of where the adult is "habitually resident". This has implications for identifying responsibility for supervising the order.

5.35 More practically, the involvement of different local authorities at different stages may raise issues of communication between agencies. For instance one supervising MHO had not received background information on the individual for whom they had on-going responsibility.

5.36 On the other hand, if a case is not transferred, then supervising an order in relation to someone at some distance may raise practical difficulties. This relates not just to local authority applications but also private applications where the local authority is required to provide an MHO report, and subsequently to supervise and review the case. This may involve adults across Scotland or other parts of the UK. 12

Prior knowledge of the adult

5.37 The extent to which the MHO and medical assessors knew, or were familiar with, the adult was highly variable, from cases where the MHO had in-depth knowledge from having worked with the adult personally for some time, to ones where the adults was completely new to the MHO. Consultant psychiatrists and GPs also varied in terms of their familiarity with the adult. The majority of GPs interviewed had had some prior knowledge of the adult, in several cases extending over many years. In one case, however, the GP had never met the adult before. Similarly, consultants could either have been aware of, or been treating, the person for some time, or might not have met them before. There were, therefore, cases where there had been significant engagement with an adult by key players prior to the application process, and others, where, as in one private application, "the MHO and the doctors were three strangers to [the adult]".

5.38 Of the professional groups interviewed, GPs placed the most importance on having some prior knowledge. This, however, may reflect a lack of confidence in their ability to assess the "mental competence" of someone with whom they are unfamiliar.

5.39 It was not possible to indicate from the data what, if any, impact the degree of prior knowledge of the adult had on the process or the outcomes. Prior knowledge facilitates a cumulative picture to be built up of an adult's capacities and areas of incapacity. If few or none of those involved in the assessment have known the person over a long period, "at the end of the day there is not a lot to go on to determine what powers to apply for". On the other hand, it may be that new people may bring in a fresh assessment.

ASSESSMENT AND DECISION-MAKING

Assessment processes

5.40 There are, in effect, four overlapping assessment processes: the MHO assessment, the assessment by the consultant psychiatrist, the GP assessment and, where appointed, the safeguarder's or curator's assessment.

What are the assessors looking for?

5.41 From their accounts of the assessment process, MHOs look for four things: the appropriateness of guardianship; the potential for alternatives; the 'capacity' of the adult to make a judgement; and the appropriateness of the person nominated as guardian.

5.42 Clearly, the first three elements are linked: the potential for alternatives to guardianship, such as the appointment of an attorney or someone being enabled to move to a nursing home voluntarily, will hinge on an assessment of an adult's capacity to make an informed judgement. While the assessment of incapacity is the formal responsibility of the medical assessors, the MHOs were, nonetheless, weighing up in their own minds the adult's level of understanding, and communicating this to the medical assessors. In one case the MHO felt that the adult may have the ability to grant welfare and financial power of attorney. The MHO and Responsible Medical Officer subsequently undertook a joint visit to assess whether the adult fully understood the implications of granting POA.

5.43 Consultants and GPs were looking for similar things: "comprehension", "capacity", "competency to make decisions". In several cases, where the adult had limited communication ability, the clinicians specifically looked at these skills. One consultant observed that people may have intellectual capacity but this may not be picked up if an inappropriate means of communication is used.

5.44 Safeguarders or curators ad litem, appointed by the courts, appeared to have a similar agenda to that of the MHOs, looking to establish through their assessment the reasons why guardianship was being considered; whether it was in the adult's best interest; whether or not the adult met the criteria; and the appropriateness of the nominated guardians. The assessment included both direct contact with key players in the process and commissioning independent psychiatric and social work reports.

The assessment process

Collecting evidence

5.45 MHOs described a fairly extensive evidence-gathering process, involving the adult, their nearest relative, paid carers, social worker or care manager, clinicians and other professionals who might be involved or services the adult might use. They might also look at past files or reports. Consultants' and GPs' contacts varied, with a focus on those with more immediate contact with the adult, such as paid carers and nearest relatives, as well as with the adult and with each other. Either through direct communication, or via the independent psychiatric and social work reports, safeguarders or curators would collect evidence from the adult, their nearest relative, paid carers, social worker and MHO, as well as evidence from the adult's past history.

Talking to each other

5.46 In local authority applications, the key forum for joint discussion is the case conference. In addition to the MHO, consultant psychiatrist, social worker or care manager, the nearest relative and the GP, those invited to attend could include relevant care staff or community support workers, a community psychiatric nurse and nursing home or residential care managers. Housing department and police representatives were also invited in one case.

5.47 In several cases, GPs were integral to the collaborative process, sometimes through informal or on-going discussions rather than attending formal case conferences, for which they were unable to find the time. In other cases, however, the GPs appear to have been almost on the periphery of the process, undertaking a discrete task independently. Perhaps the most extreme example was the case described above where the GP was approached with the forms by the adult and their carer in the course of a surgery appointment, without any prior discussion. Nor was there further discussion with any of the other professionals involved and the GP had also not been informed of the outcome.

5.48 In one area representatives from the local authority legal department were also included in the case conferences for several adults. In a second, the relevant reports were forwarded to the local authority solicitor (as applicant). Respondents did not include the lawyers among those they described as attending the case conferences, although it is possible that this may have been an issue of recall on the part of those interviewed.

5.49 Given the role of local authority solicitors in drawing up the summary application, including the powers sought, and in cross-examining witnesses in court, the role of the legal department was clearly more than administrative. There were insufficient data from the study to indicate how collaborative the process is with this group of key players. The potential was, though, illustrated by the comments of one MHO, who described how important and valuable their on-going discussions with the legal department were in determining the best way forward.

5.50 Case conferences provided a framework for group or joint decision-making, allowing for a range of different perspectives to be highlighted and discussed. In addition to the formality of case conferences, examples were also cited of additional informal meetings, "long conversations" between different professionals, and of joint visits. In one case, the nature and degree of joint working between the NHS, social work and a nursing home were felt to have been fundamental for achieving a good outcome for the adult, without recourse to the legislation.

5.51 In private applications, where there would be no case conference, there was far less opportunity for collaborative and joint discussion between the different professionals involved. While there might be "conversations" between the MHO and medical assessors this was largely about information gathering, not collectively discussing or reaching a joint decision: each party was largely working independently of the other. The advantages of joint working that the system of case conferences encourages, therefore, do not feature in such applications.

Involving adults

5.52 Specifically in the context of assessment, the data indicate the dual nature of assessors' contacts with the adult. The aims of practitioners were, as per the principles, to ascertain the present and past wishes and feelings of the adult, and, where expressed, to identify the extent to which those wishes and feelings are based on an informed judgement. This duality gives rise to a number of scenarios.

  • In several cases, MHOs, consultants and GPs were unable to communicate directly with an adult with limited communication skills, relying on observation of the adult in their normal environment and drawing on the knowledge of those more familiar with the adult, for example, a paid carer or nearest relative.

  • In at least two cases the adults concerned had impaired judgement but at the time of the assessment were felt to be able to understand sufficiently what was proposed and to express an informed view or choice.

  • A further scenario, suggested above, arose when people were able to indicate what they wanted, but this was assessed as being based on impaired judgement. For instance, an elderly woman with dementia was most adamant about wishing to remain in her home. However, she was felt to be at risk and unaware of the dangers to which she was exposed.

  • In at least one case, an adult was able to articulate, but felt not to be able to comprehend what was being said, or indicate their own wishes.

ASSESSING CAPACITY

5.53 As already indicated, although determining incapacity is formally a medical responsibility, others too may be making 'informal' assessments which subsequently contribute to the formal assessment. What assessors were looking for was evidence of someone's ability to understand and/or take actions to minimise risk - now and in the future - and a consistency in this understanding. In one example, where an order was not pursued, the adult was felt to be able to indicate that they understood that they were no longer able to look after themselves, and that they were in positive agreement about a move to a particular nursing home - not just acquiescing. In cases where an order was pursued, the adult was either unable to understand the risks to which they may be exposed (or to which they may expose others) and/or to take actions to minimise the risk.

5.54 In the majority of the sample cases there was agreement between professionals on the nature of the adult's incapacity. Through the additional perspective brought by an MHO, in some cases the initial view of the adult's incapacity to make an informed judgement was modified. In two cases where POA was proposed in place of a guardianship order, the clinicians agreed with the MHOs that, although the adults lacked capacity in many areas, they nonetheless understood the implications of what they were agreeing to and were clear about who they wanted to take on these powers. In a case where eventually no action was taken under the Act, the MHO was able to present evidence of the adult's capacity to agree to move to a nursing home sufficient to convince a psychiatrist already questioning the adult's degree of incapacity.

5.55 The cases where alternatives were pursued begin to demonstrate a more sophisticated understanding of incapacity: that it is not all or nothing. Across the professional groups, the basic premise of AWI, that a person may be legally capable of some decisions and actions and not capable of others, was generally welcomed. From the cases in the sample, however, people may fall into three groups determined by extent of assessed incapacity:

Level 1: global incapacity

  • In some cases incapacity was described as total or global. These were people who, it was assessed, lacked capacity in all five areas defined in the legislation. Due to the nature of the cause of incapacity none were likely to regain capacity.

Level 2: partial incapacity

  • Other adults were judged to have capacity in some areas, but not others, exemplifying most clearly the relative model of incapacity built into the legislation. Commonly this group of people were considered able to make day-to-day decisions about what to wear, what to eat, and what to do during the day, but unable to anticipate risks, make informed decisions about their own future, or fully understand the implications of, for example, signing a tenancy agreement. For example, one adult was deemed to be capable of instructing a lawyer, but to be unaware of the difficulties she had maintaining her living circumstances. Despite impaired decision-making capacity, several adults were assessed as able to express a coherent and consistent judgement about who could make these decisions on their behalf. In one case the MHO described the need to balance the risks arising from the areas in which the adult lacked capacity and their rights in those areas where they still had the ability to make informed judgements. Where the balance is struck may depend on other options for risk minimisation, including the adult's capacity to authorise someone to make decisions for them, but also the availability of additional services and/or medication.

Level 3: capacity

  • Adults may be assessed as having the capacity to communicate and make informed judgements about both day-to-day and future decisions. Only one adult within the sample fell into this category, and here the assessment hinged on his apparent willingness to make the 'right' decision to minimise risk, that is to move into a nursing home without the need for a guardianship order.

5.56 Although not directly evident from the sample cases, several practitioners underlined the difficulties of assessing incapacity where this changes, fluctuates or is intermittent, or where a combination of physical and mental health problems makes it difficult to assess whether the person has capacity or not.

DETERMINING ACTION

Considering alternatives

5.57 In addition to the central issue of capacity, three other factors emerged as significant in the decision to consider alternative courses of action. First, the important role of the MHO in raising questions, including those relating to the adult's capacity, and proposing alternative solutions. In each of the three cases where alternatives were seriously considered the MHO was a prime mover. Second, contingent factors may influence consideration of alternatives, specifically the availability of an individual the adult knows and trusts to appoint as their welfare and/or financial attorney. Third, in two cases where welfare guardianship was pursued, the point was made that the less restrictive option had, in effect, already been attempted, possibly even beyond the point when action should have been taken. From the applicants' point of view in both cases what was significant was not just the immediate context but what had been happening over a number of years.

Type of order

5.58 Whether the action is aimed at addressing welfare and/or financial affairs is obviously contingent on the particular circumstances of the case: the areas over which the adult is unable to manage their affairs and the decisions someone requires the authority to make on their behalf. In most cases where the local authority was the applicant the adult had too little income or was reliant on benefits so it was unnecessary to obtain a financial order. In a case where a local authority applied for financial guardianship the adult had inherited a large sum of money which they were not thought to have the capacity to manage. A solicitor was nominated as the adult's financial guardian.

5.59 In another case the nearest relative applied for both financial and welfare powers. In this instance it was suggested that the application for financial guardianship, in relation to an adult with no source of income other than benefits, was possibly based on erroneous advice, reflecting the inexperience of all those involved. The process, including the need to complete a management plan, and an initial requirement to pay caution (subsequently overturned by a second sheriff), were described by the applicant as a "disaster", something not to be "touched with a bargepole". It was only subsequently that the applicant found out that management of the adult's finances could have been achieved by a Department of Work and Pensions appointeeship.

5.60 In two cases a financial intervention order was considered. In one an application was made by the local authority (together with an application for welfare guardianship) as a means for attempting to release monies held by the adult in an offshore account, and the bank managing the account would not recognise the powers of the Scottish financial attorney. It was hoped that a financial intervention order would be the least restrictive option for the adult, while also giving some legal authority to allow the money to be released.

5.61 In the other, a financial intervention order was sought by a local authority as a way of circumventing the prohibition on local authorities acting as financial guardians. It was recognised that what was required was a longer-term mechanism to assist the adult to manage her financial affairs, including preventing the accumulation of debt. The local authority policy at that time discouraged the appointment of a solicitor, funded by the council, to act as financial guardian. The sheriff, however, refused to grant the financial intervention order. The adult's continuing financial difficulties, together with a loosening of the local authority policy on meeting the fees of solicitors acting as financial guardians had since opened up the possibility of applying for financial guardianship in this case.

5.62 In only one welfare guardianship cases did the possibility of an intervention order as a less restrictive means to meet welfare needs appear to have been considered in depth. In the majority of cases discussion appears to have centred on the appropriateness, or otherwise, of using guardianship to achieve objectives. This could be a reflection of the on-going needs of the adults concerned, or there could have been an element of erring on the side of caution.

5.63 For the one exception, an adult moving from hospital to a new home in the community, there was a discussion around whether what was required was a short term intervention order to effect the move, including making it possible for a tenancy agreement to be signed, or whether long term powers were needed. The uncertainty of those involved in the discussions, together with a belief that if the application were thrown out they would have to recommence the lengthy application process, resulted in the local authority applicants "hedging their bets" and submitting an application for both an intervention and guardianship order. The sheriff granted the guardianship order on the basis that the adult needed longer-term protection. 13

DETERMINING POWERS

5.64 Assessment of incapacity is fundamental to establishing whether the adult comes within the purview of the legislation. But the relative nature of incapacity takes on additional significance in the context of determining what powers to seek. As incapacity is not all or nothing, the powers sought should relate to need. The extent to which they do is contingent on who draws up the powers, who sees them and at what stage. On the basis of the research data, from the sample cases there seem to be three approaches.

  • Powers drawn up as part of joint discussions: in several cases powers were drawn up in the context of case conferences or joint discussions. In one, this involved several meetings over a number of months and the MHO was clear these were not just about whether to pursue an order or not, but also a forum for a joint discussion on the powers sought.

  • Powers drawn up by local authority or private solicitors, largely separate from the assessment process and then presented for ratification. Rather than emerging from multi- disciplinary discussion the list of powers is presented from 'outside'. In private applications solicitors discuss the powers with the applicant, but there may not be any discussion with the other professionals involved, although they may have sight of the powers before the application is submitted.

  • Powers drawn up by solicitors but not seen at the time the application is submitted. Three practitioners, from two areas, described how applications, including the powers sought, were prepared by local authority or private solicitors after they had undertaken their own assessments. One MHO, for example, commented,

"You need to see the application before you write the report. I have still never seen the application in this case, and still don't know what powers she has got."

All three practitioners made the point that they had learned from experience and would now ask to see the application before preparing their report. 14

5.65 The research did not have access to the applications made or orders obtained: information on the powers is therefore based on respondents' recall. From this, it appears that while in some cases the links were clearly made between the powers and need, other applications included a "list" of powers almost as standard. Discussion of the origin of these "lists" suggested that they were "borrowed" from various external sources: the list of suggested powers in the Part 6 code of practice, for example, the powers previously granted to a tutor dative, or a copy of "the style of setting out the welfare powers". One MHO suggested that applications may include extensive lists of powers to preclude having to return to court later for further powers. Commenting on this, the respondent added,

"powers should relate to a specific capacity at a specific time - not to give people the authority to ride roughshod over people at will."

5.66 The interviews with adults were not able to uncover to what extent, if at all, people were aware of, or were affected by the powers others had in relation to their lives. In one case, however, the adult was unhappy about their place of residence because of the locked doors, describing how moving to this accommodation, "Doesn't feel like a step forward, feels more like a step back." Practitioners working with one adult described how they had "rankled" at the powers the order gave social work over where they stayed and the authority to access their home.

5.67 The interview data, therefore, illustrate the duality of the powers: they give power to people to support and protect, but, by the same token they also give power over an adult.

DECISION-MAKING: RISKS, CAPACITY AND POWERS

5.68 Summarising the ways in which risks, capacities and powers work together, it is useful to refer to the earlier discussion of the determinants for action under the legislation (see above). Here it was suggested that in some cases interventions were aimed at risk management, while in other cases the focus was on establishing decision-making authority. These two stimuli are reflected in the decision-making processes.

5.69 What the data suggest are two orientations informing decision-making: a risk orientation, especially in relation to adults who have impaired judgement but are able to articulate and act; and a decision-making orientation aimed to identify someone with legitimate authority to make day-to-day and future decisions on behalf of an adult with 'global incapacity'. These orientations are not mutually exclusive - but a way of teasing out the relationships between risks, capacities, powers and immediate outcomes. (Appendix 6 presents these models diagrammatically.)

Model 1: Risk orientation

5.70 In Model 1, the trigger to action is the actual or potential risk to the adult and/or to others, and the extent to which the adult understands the risk to which they are, or could be, exposed. Where the adult is able to comprehend or judge risks, including their inability to live on their own, no further action would be taken under the legislation. Where an adult has impaired judgement but has the capacity to minimise risk by appointing someone to assist with their financial or welfare affairs, then Part 2, rather than Part 6, of the Act may be invoked. Where, however, an individual is assessed as lacking capacity to assess financial or welfare risks, make decisions for their future, or appoint someone to act on their behalf, then Part 6 would be invoked. In this instance, powers sought may be thought of as powers over the adult.

Model 2: Decision-making orientation

5.71 In Model 2, the focus is on the actual or potential vacuum in decision-making authority in relation to an adult with no or very limited capacity in terms of the five dimensions described in the Act. The focus is less on minimising immediate actual or potential risk, than to give legitimate authority to someone to make future social, healthcare and financial decisions on behalf of the adult. The emphasis is, therefore, on giving powers to.

5.72 Within the sample, risk-oriented cases were largely initiated by local authorities. Cases where the impetus was to obtain decision-making authority were initiated by private individuals (although the applicant may be the local authority).

MAKING AN APPLICATION

Applicants and interveners

Choice of applicant

5.73 Three applications were made by nearest relatives, all of whom subsequently became guardians. These included applications for financial-only, welfare-only and financial and welfare guardianship orders. The local authority was the applicant in the remaining cases, in two of which the nearest relative was proposed as guardian. In another two cases, seeking financial powers, the local authority made the application and solicitors were proposed as financial guardian and financial intervener respectively.

5.74 In one case pragmatics appeared to inform the decision about who would be applicant: the nearest relative, subsequently appointed guardian, lived some distance away. In another, the relative was unaware that the local authority could have applied on their behalf. The potential costs involved apparently discouraged one nearest relative from making an application. In other cases, however, it is not clear from the data why it was the local authority rather than the nearest relatives, or vice-versa, who took on the responsibility of making the application.

Choice of guardian or intervener

5.75 Four welfare guardianships were held by nearest relatives, two jointly by parents of the adult. In three of these cases an application for guardianship had been initiated specifically to give the nearest relatives the authority to make decisions on behalf of the adult.

5.76 In the other Part 6 welfare guardianship cases, the local authority was appointed guardian, either because there was nobody else able to perform the role, or, for three adults, because relatives or friends, who might have taken on the role, stated a preference for the local authority to act as guardian. Since a local authority is not able to act as a financial guardian, two of the three financial guardians appointed were nearest relatives, the third a solicitor. A solicitor was also appointed to act as a financial intervener in one case.

5.77 In the one case where welfare and financial POA were granted to a private individual, in response to the MHO's advice, the roles were shared with the solicitor involved in drawing up the papers. This was seen as a way to support the attorney in undertaking these roles, particularly if difficult welfare-related decisions needed to be made in the future.

Co-ordination of the application process

5.78 Local authority applications were largely co-ordinated by an MHO, whose role included, in addition to preparing the MHO report, liaison with the clinicians providing medical reports and with the council solicitor preparing the summary application. Many MHOs were familiar with taking a very active part in Section 18 applications under the Mental Health (Scotland) Act 1984 and assumed a similar role for AWI applications. However, several pointed out that although they often felt as though they had the major responsibility for the application, under AWI the application is made by the local authority, not the MHO. At the time of these applications the legislation was new to MHOs who were still adjusting to this different role.

5.79 Two private applications were largely co-ordinated by nearest relatives with assistance and advice from their solicitors, and, in one case, a nurse. Both relatives were also caring for the adults concerned and found the co-ordination role stressful and demanding of their time.

5.80 MHOs, solicitors, and, in private applications, nearest relatives had an important role in facilitating communication and, where necessary, keeping the application process moving. This included discussions with GPs initially reluctant to complete a report, and a request to one GP to make necessary amendments to the report.

5.81 Another element to co-ordination was to ensure that the different reports were written within the required timeframes. In five cases the requirement to lodge an application within 30 days of the medical reports appeared to create difficulties. In three of these medical assessments had to be completed a second time because they did not meet the required timescales. As one private applicant commented,

"It's very difficult getting three people from different places with different funding to all do the assessments in 30 days."

Two MHOs suggested that the 30-day limit was particularly tight when the MHO and none of the other practitioners were familiar with the adult and needed to undertake a full assessment and determine the powers. Given the risk of error, one MHO described how she had felt she had to go through the application "with a fine tooth comb" to make sure it was correct.

Reports

5.82 The process of completing the standard report forms raised a number of recurrent comments. For MHOs the structure of the report form was felt to be quite straightforward, although completing it time-consuming. One MHO thought that the prescribed layout of the form helped her ensure that the application related to the principles of the Act.

5.83 Several doctors had some problems with the prescribed format of medical reports, in relation to their being insufficient space to summarise their assessment of the adult or difficulties with some of the choices they were asked to make on the form, leading to them adding extra information to clarify their responses.

5.84 The extent to which the reports, once written, were shared varied. Some MHOs and Responsible Medical Officers had shared the content of their reports with nearest relatives and carers. In the two private applications the report was prepared for the applicant to lodge with the court, so that nearest relatives as applicants received copies. In both cases, however, the MHO did not have sight of the medical reports.

LEGAL PROCESSES

Court procedures

5.85 In only one case was it reported that the intimation to an adult had been dispensed with. Arrangements were made in several cases to ensure that intimation was carried out with the support of a relative or member of residential care staff. However, several interviewees commented that the adult would have been completely unable to comprehend the intimation.

5.86 A safeguarder or curator ad litem was appointed by the court in three cases, all applications for welfare guardianship. Factors that appeared to influence the appointment of a safeguarder or curator included the following.

  • An assessment, usually by an MHO or social worker, about the need for a safeguarder. In several cases the adult's interests were thought to be already safeguarded in some other way, for example by the nearest relative or solicitor; in one case the adult was considered capable of instructing a solicitor.

  • The existence of local authority guidelines. In one of the sample local authorities, social work procedures included consideration of the adult's ability to instruct a solicitor, or their possible need for a safeguarder/curator, and for this recommendation to be passed on to the clinicians assessing the adult's incapacity.

  • The decisions of individual sheriffs. A request to the sheriff to dispense with intimation to the adult was thought to make it more likely that the sheriff would wish to appoint a safeguarder. If this request was not made the data suggest individual sheriffs may take different approaches in terms of whether or not to appoint a safeguarder/curator. The research was not able to systematically explore this, but it may be an area for further monitoring.

5.87 In the context of 'representation', none of the adults in the sample had an independent advocate. One social worker had unsuccessfully attempted to access advocacy for an adult; another had offered the assistance of an advocate but the adult had declined; and one MHO had difficulty obtaining carer advocacy for a nearest relative appointed as a financial and welfare guardian.

5.88 Court procedures seemed to vary between and within different geographical areas. For example, hearings could be held in the sheriff's chambers or in court, but all the hearings in relation to the sample appeared to have been held in closed court. In most of the unopposed cases respondents perceived the hearings to be very short. Some respondents, including a nearest relative who had not been called by the sheriff, felt that the application had been 'rubber stamped'. However, in two cases, including an opposed application, the sheriffs were felt to be taking time to weigh up the issues involved.

5.89 In some cases there was a considerable time delay between lodging the application and a final decision, for a variety of reasons, including deferment to allow a safeguarder or second medical opinion to report, the time taken to obtain legal aid, and reported difficulty in securing court time. An interim guardianship order was requested, for one case, in anticipation of a planned move for the adult being delayed.

Court attendance

5.90 Only one adult within the sample had attended court, in their case to oppose the guardianship application. Other adults had not wished to attend or, it was felt by relatives or professionals that, they would not have understood the proceedings or found them upsetting or confusing.

5.91 In four cases, the nearest relative(s) had elected to attend one or more court hearings, and in another the hearing was attended by the adult's financial attorney. Several relatives felt it was important for them to attend, even where, as for one, they had to travel a considerable distance.

5.92 Hearings were also attended by private solicitors and, where appointed, a safeguarder or curator ad litem. The local authority solicitor and an MHO or social worker would attend where the application was made by the authority. In fact, several MHOs emphasised the importance of attending the hearing and, in several cases, appeared to have an important role in keeping others informed and supporting individuals unfamiliar with court procedures. MHOs did not attend court where financial-only powers were being sought. Nor were MHOs present when private applications were made by nearest relatives, so they did not play the same supporting role they would have in local authority welfare applications. Apart from the one contested case in the sample, RMOs and other medical practitioners did not attend the court hearings.

5.93 Several of the relatives who attended court found the formality perplexing and inhibiting. One private applicant remarked:

"I had no idea that the judge would sit up on this great big flipping platform like God. I certainly didn't open my mouth unless I was told to."

5.94 Professionals involved in the case where the adult chose to attend court to oppose the application felt that the experience had been confusing and stressful for the adult.

"[X] gave evidence… in court - probably helped the application. [X] was also not well served because of the two adjournments, and…was struggling to grasp the process…. [X] took the stand against lawyer's advice. [X] basically collapsed: it was a rant, tears, and then [X]got lost….The sheriff was sympathetic towards [X], but.. listening to [X] in court was very sad. But most saddening moment was during the sheriff's summing up. Addressing [X's] lawyers the sheriff said he was throwing out their argument. [X] thought this meant they had won. But then the sheriff said the order was granted, and everybody stood up and walked out. [X] was perplexed, and it was left to the social worker and MHO to explain to [X] that the order had been granted."

5.95 Examples such as these perhaps emphasise the need for greater consideration of the role of legal safeguarders able to represent the adult's views and the potential role of independent advocates to support the adult.

Costs and fees

5.96 Issues relating to both fees and legal aid were raised in the context of the implementation element of the consultancy and are discussed in Chapter 3. Among the cases included in the qualitative research, the need to pay legal fees did appear to affect some applications. On the one hand, the expense of making a private application was a concern for one nearest relative, and was reported to deter individuals making applications in other cases, particularly where legal aid was not granted. On the other hand, where applications for legal aid were made it was perceived to take some time before approval was obtained, and in three cases this was felt to have contributed to delays in the application and court processes.

5.97 The requirement to find caution where financial guardianship was granted appeared to vary between, and even within, cases. In one instance, where financial guardianship had been applied for (possibly mistakenly) and granted in relation to an adult in receipt of welfare benefits caution was applied by one sheriff, only to be dispensed with by another at a second hearing. In another case, where the adult did have funds, caution was dispensed with.

INTERFACE ISSUES

5.98 A number of issues were raised reflecting the interface between the Act and other legislation and within AWI itself.

Part 2: Financial and welfare powers of attorney

5.99 Prior to the Act coming into force, two adults had granted friends or relatives with financial POA prior to losing capacity, making a later application for financial guardianship unnecessary. As described earlier, this did not however, preclude having to make an application for a financial intervention order when a bank in England refused to recognise the attorney's authority. In a third case, an action under Part 6 was avoided because of the adult's capacity to grant financial and welfare power of attorney under Part 2 of the legislation.

5.100 Several interviewees suggested that there could be a move towards MHOs, solicitors and others encouraging individuals to consider granting POA specifically to avoid the possibility of having to consider more restrictive measures at a later stage.

Part 5 Consent to medical treatment 15

5.101 Some GPs had reservations about signing Part 5 Section 47 certificates. Issues included pressure of time, uncertainty about when these were required, difficulties in assessing capacity and the perceived cost to the health service.

5.102 The need to obtain Section 47 certificates to cover medical and dental treatment was an issue for two relatives acting as welfare guardians. Concerns included: perceived delays to treatment while obtaining a certificate; others' apparent confusion about the guardian's role in relation to consent to treatment; and a perception that Part 5 gives doctors the final say over treatment.

Between AWI and the Mental Health (Scotland) Act 1984

5.103 Comments on the relationship between AWI and the Mental Health (Scotland) Act 1984 had two dimensions. On the one hand several MHOs and RMOs contrasted AWI favourably with guardianship under the 1984 Act since it allowed the development of 'a tailor-made order' to fit the individual's requirements. However, more anecdotal evidence has suggested that the timescales involved for an application and the perceived cumbersome nature of the process may lead to the use of Section 18 leave of absence as an alternative to welfare guardianship for adults who have a mental disorder.

Between AWI and Mental Health (Care and Treatment) (Scotland) Act 2003

5.104 Several professionals interviewed reflected on whether the tribunal system, being introduced under the new mental health legislation, would be a better forum than the sheriff court to hear Part 6 applications. The perceived advantages included a less intimidating venue and more consistent decision-making. At the same time there were concerns that the tribunal might provide insufficient judicial scrutiny. The importance of involving children's services in the implementation of both AWI and the new Mental Health Act was emphasised by one MHO.

Between AWI and policies relating to vulnerable adults

5.105 Reference was made by one solicitor and one clinician to the lack of current legislation for vulnerable adults (apart from AWI for those with incapacity). The comment was made that although there are local policies in place "they have no powers attached".

OUTCOMES of the application

Processes and timescales

5.106 Although recognising the protections Part 6 of the Act provides for the adult, the processes involved to achieve this goal were generally viewed in negative terms. Professionals and non-professionals variously described the application process as "cumbersome", "a kerfuffle", a "nightmare", "putting the nearest relative through a 'shredder'", "onerous" and an "enormous waste of time".

5.107 Data were not collected on timescales for each stage, so comments on the length of the process from referral to immediate outcomes were largely impressionistic. And the impression generally was that the process was lengthy.

5.108 Pre-court delays could occur due to:

  • the availability of an MHO. Several respondents in one area described recent delays of months in obtaining an MHO to act under the Act. In another, in that area, an MHO from outwith the district was brought in to do an assessment.

  • the need for further discussion. In one case consideration of the powers sought took place over a number meetings.

5.109 Post-submission of the application, delays could occur through:

  • the time taken to obtain legal aid, causing the hearing to be postponed. In one private application the delay was estimated to be about two months.

  • the postponement of a hearing following appointment of a safeguarder or curator ad litem.

5.110 To be able to move things forward, an application may be made for an interim order. But the perceived length of time required to obtain an order under Part 6 sets in context the concerns of several consultants psychiatrists that there are no emergency provisions under the legislation. As described above, an unintended consequence may be use of Section 18 of the Mental Health (Scotland) Act 1984 to move people with a mental disorder out of hospital, and only using AWI legislation if the person does not settle in their new home.

Immediate outcomes

5.111 Table 5.2 summarises the immediate outcomes for the cases of the thirteen adults in the sample. Where guardianship orders were granted the majority were for either three years or an indefinite period.

Table 5.2 Immediate outcomes

Type of order granted/action taken

Number of cases

Welfare Guardianship

7

Welfare Guardianship and Financial intervention

1

Welfare Guardianship and Financial Guardianship

1

Financial guardianship

216

Welfare and financial power of attorney granted

1

No action under AWI

1

Total

13

5.112 Although changes were described in a number of different areas of the lives or circumstances of the adults in the sample, it in fact proves difficult in some cases to determine whether these related directly to the use of the Act or to other changes occurring independently of the application. Some adults, for example, had already moved to new accommodation, perhaps under Section 18, or for respite. What an intervention under the Act established, however, were the legal arrangements that made possible the management of an adult's welfare and/or financial affairs, including where they stayed. Short term 'outcomes', actions taking place coterminous with, or following, an order being granted, a power of attorney coming into effect, or an alternative to legal processes being pursued, fall into two overlapping groups: substantive and procedural.

Substantive outcomes

5.113 Substantive outcomes with a direct impact on the adult fall into six categories.

  • Accommodation

Seven individuals were either already in, or moved to, supported accommodation or nursing homes around the time an order was granted. Five of these were under welfare guardianship, although four had already moved into their current accommodation by the time the order was granted. In one case the local authority used the welfare guardianship order to sign a tenancy agreement on behalf of the adult, allowing her to move to new accommodation.

Four adults remained in the community after a welfare guardianship order with powers over residence had been granted. For one the order gave the local authority some control over the adult's place of residence. Although from the point of view of the professionals the order was seen as successful in achieving this aim, the adult was known to be unhappy with the powers this gave the local authority. In three other cases, where the nearest relative was welfare guardian, the power to make decisions over current and future accommodation was considered by the guardian to be an important outcome of the guardianship order. A fifth adult's wish to remain in her own home was achieved because she was able to grant welfare and financial POA.

  • Safety

In six cases where welfare guardianship orders were granted, the adult's safety had been an important consideration in making the application. This was said to have been supported in a number of ways, through encouraging the adult's engagement with workers in a community setting, providing some control over those with whom the adult could associate, and allowing the adult's physical and mental health to be monitored and care provided. In one case, continuing safety concerns resulted in the adult's subsequent admission to long-term in-patient care.

  • Quality of life

Of the six service users interviewed, four had moved to new accommodation. Three were positive about the moves. Changes identified by themselves and their carers included better physical health, more opportunities for social activities and the development of daily living skills. One user, however, described himself as frustrated and bored. His nearest relative (not his guardian) also felt he was lacking opportunities to develop daily living and social skills. One adult appreciated being able to stay in her own home, but would have liked more "company".

Other evidence of quality of life outcomes came more indirectly from friends, family and practitioners. One relative commented that he thought the adult liked her residential care home because, "she had a room which faced on to the gardens and she had been a keen gardener".

  • Medical treatment

Medical treatment was a particular issue in three cases, all welfare guardianship orders held by nearest relatives. In each the guardians felt that the order had enabled them to inform and influence some control over decision-making in relation to the adult's medical and dental treatment. As noted earlier, however, the guardians also expressed continued concerns about some aspects of the ways in which Part 5 of the Act was being interpreted and implemented.

  • Management of finances

The management of the adult's financial affairs was a desired outcome in six cases. This was achieved in three through financial guardianship and in one through financial POA. Outcomes included the sale of property and the management of the adult's day-to-day living expenses.

In one case, despite obtaining a financial intervention order to access funds in an account in England the order had to be registered in a local court before it was recognised, entailing additional time and expense to resolve. In another (discussed earlier) where an application for a financial intervention order was rejected by the court the adult continued to experience financial management difficulties.

A less positive outcome for private individuals in particular who take on responsibility for managing an adult's financial affairs, was the associated administration and scrutiny which respondents experienced as onerous, time-consuming and stressful. 17 There are also ongoing costs where private individuals assume the role of financial guardian or attorney, which may include both administrative costs and legal fees. There was also some uncertainty about the costs that could be reclaimed by guardians and attorneys.

  • Access to information and services

One welfare guardian had been able to access medical information related to the adult; a financial attorney had obtained information about the adult's bank accounts; and the order had assisted one welfare guardian to apply for direct payments so that carers could be employed to look after the adult at home. However, some guardians and professional staff described difficulties in accessing and co-ordinating resources for the adult. Perceived gaps included opportunities for holidays and other activities outside the home and insufficient staffing in residential care.

Procedural outcomes

5.114 Procedural outcomes refer to the impact of an order in providing a formal legal basis for arrangements that may already exist. It is the abstract legal nature of the 'outcome' that perhaps informs the tension, evident in the comments of respondents, between those who felt that Part 6 measures added nothing to the protection or care of the adult, and those who believed adults had the right to the legal protection of AWI if they could not consent to major changes in their lives.

Longer term outcomes

5.115 There was an expectation in five welfare guardianship cases that adults might need to move on to alternative accommodation. Reasons for this included the adult's wish to be more independent, concerns that the adult needed more support and a young person's move into adult services.

5.116 Some parents had concerns about the long-term future of their son or daughter, and, in two cases, as welfare guardians, wanted a greater emphasis on longer term planning.

SUPPORT AND SUPERVISION

Support needs identified by relatives and carers

Before an order is granted: information and advice, communication and emotional support

5.117 When measures under AWI were being considered relatives and carers valued both verbal and written information about the legislation, which many found complex and difficult to understand. MHOs seemed to be most likely to provide this information, but solicitors were also described as very helpful in three cases, and in another a community psychiatric nurse was involved in giving information. In one private application, the nearest relative experienced considerable problems accessing information and advice about use of the legislation.

5.118 Information about financial issues, including direct payments and free personal care, was also considered important. Two relatives/carers had problems accessing this. Several relatives and carers had contacted the OPG for information in relation to financial powers. One relative had found this advice useful, but two other individuals perceived the advice to be inconsistent. Another described difficulties obtaining accurate information on legal aid.

5.119 Ongoing communication from professionals about the progress of their applications, some of which spanned several months, was thought to be important by two relatives/carers, one of whom lived in England. In both cases MHOs assumed this role as a channel for information.

5.120 Some relatives and carers found their involvement in use of the legislation a stressful experience. In four cases, contact with social workers or MHOs was perceived as reassuring and supportive during the application process.

After an order is granted: support in exercising financial powers and on-going support

5.121 The role of financial guardian appeared to create particular support needs for individual carers and relatives, who found the role complex and confusing. The solicitors involved in two such cases were found to be supportive and informative, although there were financial implications in obtaining such assistance. The OPG was seen as less supportive, and bank staff sometimes lacked understanding of the powers of both financial attorneys and guardians.

5.122 Ongoing requirements for support varied and also intersected with supervision requirements (see below). Support came from a variety of sources including community psychiatric nurses, care managers, solicitors, and family members. In two cases MHOs provided ongoing support on an informal basis in the absence of other help.

Supervision and implementation of guardianship orders

5.123 Under Section 10 of the Act the local authority has a duty to supervise welfare guardians. Regulations currently require that the adult is visited at intervals of no more than three months where the guardianship is for one year or more. 18 In the four cases where a nearest relative was appointed as welfare guardian the extent to which supervision was provided appeared to vary. In two cases there was regular contact between the nearest relative or welfare guardian and the local authority supervisor, but two other guardians were not aware of receiving regular supervision.

5.124 Five welfare guardianship orders were held by local authorities, with both care managers and MHOs acting on behalf of the authority to supervise the order. Again, the arrangements described by social workers and MHOs exercising guardianship powers varied, from regular three-monthly reviews in one case to none to date in another.

5.125 Factors influencing local authority supervision of guardianship orders included:

  • knowledge of the Act and understanding of review procedures, for example, the degree to which non-MHO social workers understood their supervisory role;

  • lack of clarity about the respective roles of care management and supervision of the order when responsibility lay with two different practitioners or different local authorities;

  • differing practices in local authority areas about who should supervise a guardianship order or when a review should be convened;

  • resource issues, for example, the availability of an MHO to undertake supervision.

5.126 Visits from, and contact with, the MWC, acting in its statutory capacity under Section 9 of the legislation, were described in five of the nine cases where a welfare guardianship order was granted. In one case the visit was believed to have helped one adult to find out about how to seek a revocation of the order. In another the guardian had found the visit by the MWC representative to be helpful and informative. For two, however, it was perceived as intrusive. One explained, "when the Mental Welfare Commission came I thought, 'I don't want another intruder in my life'"; they already felt 'over-scrutinised' by the OPG and the Benefits Agency.

5.127 A financial guardianship order had been granted in three cases studied. In two of these cases the financial guardians raised issues relating to the amount of "paperwork" required by the OPG, perceived inconsistencies in the information with which they were provided and a feeling of being "over-scrutinised".

5.128 Clearly, the comments on contacts with both the MWC and the OPG were based on the personal perceptions of a small sample of people. A balance does needs to be struck between the support needs of private individuals in taking on a substantial responsibility and ensuring that the adult is adequately protected. 20 What the data again, however, illustrate is the comparative and perceived isolation of private individuals.

PRINCIPLES INTO PRACTICE

5.129 The Act and its associated codes of practice reinforce the importance of taking into account the five underpinning principles in any intervention under the legislation. The in-depth case studies provided an opportunity to explore the ways in which these principles are being interpreted in practice and the dilemmas they may pose.

Benefit to the adult

5.130 The Act states that there should be no intervention in the affairs of an adult unless it results in a benefit to the adult, and that this benefit cannot be achieved without the intervention. The benefits that practitioners, relatives and carers sought and the adults themselves experienced were both direct and indirect. Direct ones included, for instance, managing risks by determining where the adult should live, determining the level of care she or he should receive, monitoring physical and mental health, promoting social interaction and relationship building and facilitating access to, or management of, funds. Less directly, an intervention under the Act was seen as providing a formal legal basis for decision-making on the adult's behalf.

5.131 At the same time, several respondents described what, for them, were the difficulties inherent in defining and assessing benefit to the adult. Considerations included the following.

  • Balancing the benefits to the adult of different courses of action. Concerns about an adult's physical safety at home, for example, had to be set against their evident distress at the prospect of moving into a residential home.

  • Questions about who derived benefit from guardianship. For example, if the legislation was primarily being used to provide the legal basis for decision-making about the adult's affairs, could this be described as having any direct benefit to the adult?

  • In several cases the process of applying for an intervention under the Act, and the mechanisms of financial scrutiny once an order was in place, were felt to have the potential to produce disbenefits to the adult. For example, the inaccessibility of the legal process to adults, or the potential for an adult to remain in inappropriate accommodation because of the sometimes lengthy application process. In one financial guardianship, the amount of work required to ensure accountability and the anxiety experienced by a non-professional guardian were perceived to have brought disbenefits without conveying any advantages to the adult.

Least restrictive option

5.132 Any intervention under AWI should be the least restrictive option in relation to the freedom of the adult. Practitioners were generally aware of drawing on this principle to inform their decision making, for example, trying all available options before contemplating use of the legislation, including consideration of less restrictive measures such as power of attorney.

5.133 Practice issues, however, that arose in relation to this principle included:

  • interpreting 'least restrictive' when weighing up alternatives (for example, use of AWI or Section 18 of the Mental Health (Scotland) Act 1984);

  • the degree to which, in practice, powers sought reflected the minimum intervention required to meet an adult's needs - in some cases the powers took the form of a comprehensive 'list' that did not appear tailored to these;

  • the perceived absence in some cases of local authority supervisory mechanisms to facilitate on-going consideration of the continued necessity for either the order or the powers granted.

Present and past wishes of the adult

5.134 In all the case studies there had been serious attempts to ascertain the present and past wishes of the adult. MHOs and safeguarders or curators were particularly concerned to establish the adult's views, but others, including RMOs, GPs, and care managers also took responsibility for this principle. Combinations of different ways of determining the adult's wishes and feelings were used. In addition to drawing on their prior knowledge of the adult, some professionals would speak directly to the adult, meet the adult with someone who knew them well and could provide some interpretation of the adult's responses, or observe the adult's behaviour and their non-verbal responses.

5.135 There were no examples within the cases of people undertaking assessments using technology to overcome communication barriers. However, several MHOs commented on the importance of taking time to get to know the adult and their carers, sometimes making several visits to the adult.

5.136 Some of the difficulties experienced by practitioners trying to implement this principle included:

  • balancing the adult's expressed views against the adult's safety;

  • explaining the use of the Act to adults with limited comprehension or memory problems;

  • establishing the adult's past and present wishes without prior knowledge of the adult or his or her circumstances.

Views of nearest relative, primary carer, guardian and continuing/welfare attorney

5.137 The views of nearest relatives and others with an interest in the welfare of the adult were sought in a variety of ways, through interviews and meetings, including case conferences. All MHOs were in contact with the nearest relative as were, to varying degrees, GPs, RMOs, social workers, solicitors, and safeguarders. Generally, nearest relatives were satisfied that they had been kept consulted and informed. One relative said she felt "heard and listened to". However one relative found the meetings she attended daunting and hard to understand and another had felt excluded from earlier decision making.

5.138 In one case there was a tension between the need to observe this principle and the adult's wish that the MHO should not contact their nearest relative, which was felt to have resulted in some damage to the relationship between the MHO and the adult.

Exercise of skills

5.139 Under AWI, guardians, continuing or welfare attorneys, and managers of establishments exercising functions should encourage the adult to exercise his/her skills and to develop new skills. There was generally less awareness of the need to have regard to this principle than others within the Act. Concerns were, though, raised about the lack of opportunity for some adults to develop their skills, either because of the resources available within a particular environment, for example to prepare meals, and/or due to a perceived lack of sufficient support.

ACCESSIBILITY AND EQUALITIES

5.140 The extent to which the legislation and the way it is implemented could be said to be accessible to non-professionals has a number of dimensions, including, for example, the availability of timely and easily understandable information on the Act, the clarity of procedures, and the support available for adults and non-professionals. The analysis, however, suggests that in practice there are barriers to accessibility. To explore this in more detail the experiences of adults are distinguished from those of non-professionals who may be acting as applicants or interveners.

Accessibility to non-professionals and adults with incapacity

5.141 From the experiences of the respondents a number of issues arise suggesting that the procedures may be experienced as an obstacle for non-professionals. For example, the need for less complex information to be available, before an application is made, as well as once an order is granted, was raised by professionals and non-professionals.

5.142 Several people described how they sat in on meetings without really comprehending what was being discussed. Summarising their own experience, one non-professional described how "as a lay person they felt out of control of the situation - have to learn quickly". A number underlined the need to be, or learn to be, articulate and assertive because of the complexities and demands of the processes, suggesting that being less articulate or assertive could impede access.

5.143 Echoing issues raised in the context of support and supervision, the different resources which private individuals and statutory agencies had at their disposal were highlighted by an MHO who remarked, "How many people have the equivalent of local authority legal section behind them?" The formality of court procedures could also be off-putting for non-professionals. Private applicants especially also described the "stress" and "pressure" of responding to the demands of the different agencies involved.

5.144 Although private individuals are not precluded from applying or becoming an intervener, from the experiences of non-professionals there may be a question of whether the infrastructure and processes are sufficient to maximise appropriate involvement. In practical terms, this may have implications for the willingness of individuals to make private applications or to act as interveners.

5.145 Although several professionals described attempting to set out what was proposed in ways that the adult could understand, the point was made by one MHO that,

"for the client group for whom it is intended, i.e. those with incapacity, it is too complex. By the time they need it is too difficult to explain."

As described earlier, specific processes, including court appearances, may also work against inclusion.

Access by people with different types of incapacity

5.146 Different perspectives were expressed about the extent to which the legislation was responsive to the needs of people with different causes of incapacity. Two non-professional respondents suggested that the legislation might not be appropriate for people with learning disabilities. In both instances the shortcomings of the legislation appeared to hinge not on Part 6 per se, but on concerns in relation to Part 5 provisions. On the other hand, one clinician felt that, because of different "treatment issues" the Act was less relevant to people with dementia than for people with learning disabilities or mental health problems.

Access by people from different equalities groups

5.147 In terms of access to the legislation by different equalities groups, for example, people from black and minority ethnic communities, men and women, people who are lesbian, gay, bisexual or transgender, one respondent felt that what should come out of the research was recognition of the difficulties faced by people who are viewed as different. In particular, there needs to be an understanding of how the experience of victimisation, for instance, on the basis of sexual orientation, can both lead to mental distress and inform how people respond when they are mentally distressed, and for this recognition to inform service responses.

5.148 It is notable, that, unlike the new Mental Health (Care and Treatment) (Scotland) Act 2003, the principles of AWI do not make specific reference to issues of non-discrimination, equality and respect for diversity, though clearly these are not precluded.

5.149 There is insufficient data from this research alone to illustrate the impact of difference, based on sexual orientation or ethnicity, and the study did not involve a gendered analysis of routes to use and outcomes from using Part 6. Nor did the small sample, including people from across the age ranges, lend itself to analysis by age. The potential for access difficulties to be compounded for particular groups may be an area for further research.

EMERGING THEMES

5.150 Clearly the small sample size of thirteen cases, some of which were among the earliest users of the legislation, limits the extent to which the findings can be generalisable. However, in-depth analysis drawing on the different perspectives of the participants has revealed a number of emerging themes which have echoes in the findings from the implementation element of the consultancy, and which offer detailed and new angles on the process, from the perspectives of a variety of people with different roles in a case.

5.151 First, the data raise issues of knowledge and understanding. At the time these cases were in process, knowledge or awareness of the scope and purpose of the legislation appeared limited to MHOs and consultant psychiatrists. This may largely be a reflection of the newness of the Act. But the data also suggest a need to widen awareness of the legislation beyond those with a role to play in applications to include, for example, children and young people's services which include people coming up to or aged 16 years and over.

5.152 The need to widen understanding also arises from the approaches taken to the five principles, which have largely embedded themselves in the consciousness of the key professionals involved in the assessment process. Beyond the assessment and application process their significance may, however, fall away. Care managers, social workers, care providers, as well as 'lay' people with authority as guardians or attorneys, may be less aware of principles or use them less in their practice once an order is granted.

5.153 Second, the study revealed two 'triggers' and associated decision-making models: a risk minimisation model and a decision-making orientation. The first, largely brought into play in respect of people assessed as having partial incapacity, aims to minimise the risk to which the adult may be exposed. The objective is to authorise powers over the adult, and local authorities are noticeably the initiators when this is the case. The second orientation, largely being effected in relation to people with 'global' incapacity, aims to give decision-making power to an authorised body or person, usually a nearest relative. It is recognised that in terms of the legislation the two orientations are not mutually exclusive - to authorise power over, also implies a body having authority to exercise these powers. The distinction drawn, however, may have more than just conceptual value.

5.154 In the context of on-going debates about when the Act should be invoked, the model raises the question who initiates an action when the adult lacks capacity but there is no immediate risk, and no-one is seeking decision-making powers on their behalf, but where decisions may be being made? Potentially it places at a legal disadvantage those people who are not actively at risk or actively objecting to a move, who do not have 'advocates' acting on their behalf. 21

5.155 The granting of power over raises issues of reciprocity. Unlike the new Mental Health (Care and Treatment) Scotland Act 2003, in which importance is placed both on providing the maximum benefit to the patient and providing appropriate services, within AWI there is no similar explicit statement balancing any loss of rights with a responsibility on public bodies to provide services. For the 2000 Act a lot, therefore, hinges on the interpretation of the principle of benefit to balance the legitimate decision-making authority which gives ' power over' with on-going benefits to the adult through the provision of appropriate services and supports. There are insufficient data from this research to conclude where that balance might currently lie. Longitudinal research, proposed as part of a longer term AWI research strategy (in Appendix 4) may, however, reveal the extent to which obtaining power over is matched by a reciprocal concern with resource input including the development or maintenance of the adult's skills.

5.156 A third theme to emerge from the study is the processual disadvantage experienced by private individuals seeking to use the legislation compared to local authorities. Consistently it appears that the processes and infrastructures in place to facilitate assessment and application, as well as on-going support for the burden of responsibility, are either not available to private individuals or place them at a disadvantage.

5.157 This ties in with the fourth conclusion: barriers to accessibility. It is suggested that in terms of the availability of information, support through and after the process (including independent advocacy), the transparency of the process, and, potentially, the associated costs, adults and nearest relatives or significant others, may be deterred from participating in the process. While it would perhaps be too strong to suggest that the system is disempowering, the comments of non-professionals interviewed suggested that, as a process, it could be experienced as a loss, rather than a gaining of control.

5.158 Finally, in terms of the outcomes realised the study was perhaps limited in drawing conclusions, and, again, longitudinal or comparative research would better reveal the impacts of the legislation. The nature of the 'outcome' is also problematic: rather than a specific identifiable impact the implications for the adult may be more subtle. An action under Part 6, for example, might effect a needed change in the adult's circumstances, minimise a risk, or prevent deterioration. The process of assessment may also generate alternative options and solutions. More abstractly, but fundamentally, it also provides a legal basis for decision-making. It is this 'outcome', being able to protect an adult unable to make decisions themselves from arbitrary and opaque decision-making, that may be the single most significant achievement of the legislation.

summary: KEY POINTS

Fifty-eight interviews were undertaken with various individuals involved in thirteen cases, from three local authority areas, where an intervention under Part 6 of the AWI had been considered and an application made, or alternatives pursued. From analysis of this qualitative data the following key points emerged.

  • The data from the thirteen case studies suggest two overlapping triggers to consideration of use of Part 6 of the Act: to minimise risk or to establish legitimate decision-making authority.

  • While there are structures and processes in place to initiate and co-ordinate local authority applications under Part 6, private applicants are working very much on their own: there are no equivalent facilitating structures upon which they can draw.

  • In local authority applications the multi-disciplinary assessment process and the system of case conferences opens up opportunities for joint and collaborative working. The opportunities and possible advantages of joint working do not appear to extend to private applications.

  • The principle that a person may be legally capable of making some decisions and actions and not capable of others was generally welcomed by respondents. In practice, the cases in the sample fell into three groups in terms of level of assessed incapacity: "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 does not systematically extend to consideration of the powers sought under the legislation. Powers may be formulated outwith the discussions which inform the decision to progress an application under Part 6 or the assessment of incapacity.

  • The data suggest that the Act is being invoked in relation to two distinct populations: one population able to communicate and act, but with impaired decision-making judgement over aspects of their lives, exposing them to financial and/or welfare risks; and another population of people who may have "global incapacities", for whom the concern is to ensure an identified body with legitimate decision-making authority. It is suggested that these two populations generate two different but overlapping decision-making models: one focusing on risk and risk minimisation, where the emphasis is on seeking powers over; and one focused on decision-making and forward planning, which seeks to obtain powers to. Within the sample, risk oriented cases were largely initiated by local authorities. Cases where the impetus was to obtain decision-making authority were initiated by private individuals (although the applicant may be the local authority).

  • The study suggests differences in practice relating to the appointment of safeguarders or curators, the involvement of independent advocates and in applications for caution.

  • Immediate outcomes can be distinguished between direct 'substantive' changes in aspects of the adult's life, and 'procedural' or 'due process' outcomes, that is, ones providing a formal legal basis for decision-making.

  • There appear to be differences in practice in relation to the nature, regularity and frequency of local authority supervision of guardians and guardianship orders.

  • The data highlight the difficult balance to be struck between meeting the needs of financial guardians (and attorneys) for information, support and advice and the requirement to demonstrate financial probity. In relation to financial guardianship especially, the procedural 'disbenefits' were felt, in some cases, to outweigh the advantages, particularly where an adult has limited funds.

  • The study begins to suggest that although the legislation is 'accessible' in the sense that private individuals are not precluded from applying or becoming interveners, 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 groups.

  • In all cases, the principles of AWI were an important feature of the decision-making processes initiated under the Act. Interpretation and balancing the principles against each other could, however, be complex, and may not extend beyond the application process.