Adults with Incapacity Act

1
Adults with Incapacity Act

• Improving with Experience

2
Welfare Guardianship

• SE Advice letters Interventions under AWI
• July 04 - response to wide variation in use of
  Part 6 by local authorities
• September 05 response to ECHR judgement on
  Bournewood
• Draft Guidance May 06 for practitioners
• issued for comment

3
When to use the Act

• Scottish Law Commissions intentions
• Application of the Fundamental Principles
• Deprivation of liberty ECHR Article 5

4
Fundamental Principles

• 1(2) There shall be no intervention into the
  affairs of an adult unless the person responsible
  for authorising or effecting the intervention is
  satisfied that the intervention will benefit the
  adult and that such benefit cannot be reasonably
  be achieved without the intervention

5
Fundamental Principles

• 1 (4) In determining if an intervention is to be
  made and, if so, what intervention is to be made,
  account shall be taken of
• - the past and present wishes and feelings of
  the adult so far as they can be ascertained by
  any means of communication appropriate to the
  adult etc

6
Fundamental Principles

• Consistent with Council of Europe Principles
  Concerning the Legal Protection of Incapable
  Adults
• Reflects the proportionality requirement inherent
  in Article 8(2) of the Human Rights Convention

7
Deprivation of Liberty

• New duty to assess for deprivation of liberty
  where adult lacks capacity to give informed
  consent to change of living arrangements under
  Article 5 ECHR.
• Bournewood judgement a case by case basis it
  will depend on the specific situation of the
  adult concerned taking account of a whole range
  of factors in their particular case.

8
Deprivation of Liberty

• In Scotland may be lawful in certain
  circumstances under AWI through use of formal
  order
• Or through use of measures under the 2003 Act

9
Deprivation of Liberty Factors to consider

• Factors affecting personal autonomy
• - past and present wishes and feelings of adult
• Access to resources to support physical and
  social autonomy and interests
• Extent/nature of limitations on contact with
  family/friend/visits, access to local community
  etc
• Internal/external design of physical environment
  and access
• Access to outside physical environment
• Duration of any limitations/restrictions

10
Factors to consider (cont.)

• Effect of changes in the care regime
• Availability of appropriate less restrictive
  alternatives
• Safety issues
• Physical abilities of adult

11
Safeguards for adults where an order may not
required

• Subject to care management/care co-ordination
  guidelines for assessment, monitoring and review
• National Care Standards
• Investigatory functions of local authorities,
  Mental Welfare Commission and OPG
• Anyone claiming and interest can apply for an
  order to over-ride action taken by local
  authority or can use complaints procedures

12
Implications of a blanket approach

• Major increases in the number of blocked beds in
  hospitals
• Significant delays in courts not able to deal
  with substantial numbers of applications quickly
• Significant and unanticipated use of local
  authority resources (legal and social work,
  especially burden on MHOs)
• While no longer major expense to private
  individuals (with availability of free legal aid
  from 1 August) the costs to public purse would
  increase considerably
• High cost to health and quality of life of
  adults, left languishing in hospital wards and
  stress on families

13
How Often Is Welfare Guardianship Being Used?
14
Approved Welfare Guardianship Applications 2002
- 2006

• 640 Apr 05 Mar 2006
• 531 Apr 04 Mar 2005
• 398 Apr 03 Mar 2004
• 261 Apr 02 Mar 2003

15
Extant Welfare Guardianship Orders 2002 - 2006

• 1459 31 Mar 2006
• 1042 31 Mar 2005
• 592 31 Mar 2004
• 261 31 Mar 2003

16
Who is being placed on Welfare Guardianship?
17
Approved Welfare Guardianship Applications
2002- 2005
18
Approved Welfare Guardianship Applications 2006
19
Who Is Being Appointed As Welfare Guardian?
20
Approved Welfare Guardianship Applications 2002 -
2006

• 76 of Guardians were Local Authorities in 02 -
  now 56
• 19 of Guardians were Relatives in 02 - now 40

21
Which Local Authorities Are Seeking Welfare
Guardianship Orders?
22
Local Authority Applications April 2005 March
2006
23
Local Authority Applications April 2005 March
2006
24
Improving with Experience

• When to Invoke draft guidance has currency
• Guidance on Communication and Assessing
  Capacity forthcoming for all staff involved
  with the capacity assessment process
• DVD Making Decisions Your Rights for adults
  (Nov)
• Guardianship and Intervention Orders making an
  application a guide for carers (October)
• Training/awareness initiatives to support
  carers professionals
• Amendments to 2000 Act through ASP Bill to
  streamline and improve access revised codes of
  practice/other publications with OPG