Adults with Incapacity Act - The developing local authority role

1. Adults with Incapacity Act - The developing local authority role Tony Jevon Social Work Officer Mental Welfare Commission

2. Changing scene 1 • The increasing use of guardianship for younger adults with a learning disability often in transition to adult services (now 32% of all applications) • The increasing granting of indefinite orders (+70%) • The pressure on SW budgets – competing demands for services already being squeezed • Increased involvement of social work staff not trained in Adults with Incapacity Act • Supervisor or delegate guardian is more likely also to be care manager and may have conflict of interest

3. Changing scene 2 • Pressure on NHS to reduce in-patient beds (further) and act on delayed discharges • Increasing requests for orders sometimes where there is no current community resource identified • Pressure to use 13za to avoid delays • Adult Support and Protection – adding to options available to social workers when addressing concerns

4. Local authority applications are reducing in number • Local authority applications are declining • 520 in 2008 – now under 450 • Some very significant swings around the country with Highland, Fife, Perth and Kinross and in particular West Lothian Council all dropping numbers and South Ayrshire, Falkirk, Dundee, Angus and East Lothian all increasing Adults with Incapacity Act activity relative to previous years. The islands too. Social Work & Housing Committee

5. LA Gship Orders 2010 – 11, sorted Per 100,000 (in Red)

6. The number of private applications continues to increase • Private applications have increased • Both local authority and non-local authority orders are more likely to be indefinite • Powers granted are very wide ranging • Use of recall remains very small

7. Approved Welfare Guardianship Applications 2002 - 2011 1521 Apr 10 - Mar 11 1358 Apr 09 - Mar 10 1230 Apr 08 - Mar 09 1125 Apr 07 - Mar 08 901 Apr 06 - Mar 07 755 Apr 05 - Mar 06 531 Apr 04 - Mar 05 398 Apr 03 - Mar 04 261 Apr 02 - Mar 03

8. Applications for Welfare Guardianship 2002 - 2011 by Applicant 82% of applications in ‘02 were made by Local Authorities - now 28% 18% of applications in ‘02 were made by relatives - now 72%

9. Approved Welfare Guardianship Private/LA Orders 2003 - 2011 • 1521 10 - 11 • 1230 08 - 09 • 1125 07 - 08 • 901 06 - 07 • 755 05 - 06 • 531 04 - 05 • 398 03 - 04

10. New Practice Guide “Supervising and supporting welfare guardians” • Jointly produced by MWC with SWIA • Considers what local authority managers need to know and do • Provides social workers with much of the information they will need to fulfil their role • Contains templates for supervisor sessions and links to all relevant codes of practice and other sources

11. Good Practice Guide: Discharging patients who may lack capacity “designed to assist staff in Health and Social Care partnerships in Scotland through the process of discharging patients from hospital who may lack capacity” http://www.scotland.gov.uk/Topics/Health/care/17420/GPGPresentation June 2010

12. Local authority role under AWI • Supervise a guardian appointed with welfare powers • Consult the Mental Welfare Commission and Office of the Public Guardian on cases or matters where a common interest • To receive and investigate complaints relating to the exercise of functions relating to the personal welfare of adult made in relation to welfare attorneys, guardians and persons authorised under intervention orders • To investigate any circumstances in which the personal welfare of an adult seems to them to be at risk • To provide welfare attorneys and persons authorised under intervention orders with information and advice • To apply for welfare and/or financial guardianship orders where necessary and no other application is likely

13. What the law says about the local authority supervisory functions Section (10)(1) of the Act says a local authority must supervise a guardian in the exercise of their role. (NB A guardian includes a local authority guardian; they must be supervised in their role too) • What the law says about supervision visits A supervisor must visit from time to time but within 3 months of an order being granted and at least every 6 months subsequently (SSI 2002 (95) as amended by 2005 (6)) There is no scope for flexibility.

14. Role of the line manager: • Provide information and advice • Provide training on the 2000 Act to ensure staff taking on the supervisor’s role have skills and knowledge • Monitor workload management • Provide staff supervision and professional development

15. Role of the supervisor: • Be familiar with the purpose of supervision and the different roles of the supervisor and care manager • Be well prepared for the supervision visit • Know what information needs to be provided by the guardian • Be confident about when to vary, recall, or seek directions and know where to get advice

16. The Future 1 • Scottish Law Commission review of AWI – • A discussion paper in 2012, aim to report in 2014 • Defining deprivation of liberty – recent cases in England “If a local authority seeks to regulate, control, compel, restrain, confine or coerce it must, except in an emergency, point to specific statutory authority for what it is doing or else obtain the appropriate sanction of the court” Honourable Justice P Jackson, Hillingdon v Steven Neary • Legal challenge to indefinite orders based on ECHR

17. The Future 2 • Self directed support - changing how services are purchased and by whom – new “appropriate person” “You will get a sum of money to spend on the support you need instead of receiving council services” SDS Website • OPG tentatively exploring idea of a guardianship lite in some circumstances • Integration of Health and Social Care