Adult Protection Committee Conference Workshop 1 Adults with Incapacity (Scotland) Act 2000

1. Adult Protection Committee Conference Workshop 1Adults with Incapacity (Scotland) Act 2000

2. Introduction to the Act Purpose:- • Introduced to protect adults with incapacity & provide support to their families and carers in connection with managing & safeguarding the individual’s welfare & finances. • Applies to adults aged 16 & over.

3. Introduction to the Act Definition of “incapacity”:- Incapable of:- • Acting; or • Making decisions; or • Communicating decisions; or • Understanding decisions; or • Retaining the memory of decisions. By reason of:- • Mental Disorder; or • Inability to communicate.

4. Introduction to the Act Definition of Mental Disorder:- • Section 328 – Mental Health (Care & Treatment) (Scotland) Act 2003. • Mental illness • Personality disorder • Learning Disability • However caused or manifested.

5. Introduction to the Act Mental disorder has been accepted to include:- • Dementia • Learning disability • Acquired brain injury • Mental illness NB – a diagnosis from a medical practitioner may be required.

6. Introduction to the Act Mental disorder does not include:- • Sexual orientation • Sexual deviancy • Transsexualism • Transvestism • Use or dependence on alcohol or drugs • Behaviours that cause, or is likely to cause, harassment, alarm or distress to any other person. • Acting as no prudent person would act.

7. Introduction to the Act Definition of “inability to communicate”:- • Inability to communicate is caused by physical disability. • Does not apply if the physical disability can be made good by human or mechanical aid.

8. Introduction to the Act Does the Act apply? Capacity Flowchart

9. Introduction to the Act Principles of the Act • Must be applied to all decisions or actions taken under the Act. • Benefit • Minimum intervention • Wishes of the adult • Consultation with relevant others • Encourage the adult

10. Introduction to the Act Principle 1 – Benefit • The proposed action or decision must benefit the adult. • The benefit cannot be reasonably achieved without the action or decision being taken.

11. Introduction to the Act Principle 2 – Minimum Intervention • If action is required under the Act, it must be the least restrictive option in relation to the freedom of the adult.

12. Introduction to the Act Principle 3 – Wishes of the adult • Must take into account the past & present wishes of the adult, in so far as they can be ascertained by any means of communication, whether human or by mechanical aid.

13. Introduction to the Act Principle 4 – Consultation with relevant others • Must take into account the views of:- • The nearest relative • The named person • The primary carer • Anyone with powers under the Act which relate to what is being proposed • Anyone the Sheriff has directed should be consulted • Anyone with an interest in what is being proposed

14. Introduction to the Act Principle 5 – Encourage the adult • In so far as is reasonable & practicable to do so, the adult should be encouraged to exercise whatever skills s/he has concerning property, financial affairs or personal welfare & if appropriate develop new skills.

15. Decision Making, Capacity & Assessment • What is the decision to be made? • The adult’s residence. • Residential care • Supported tenancy • Sheltered housing • Receiving community care/health services. • Financial matters. • Safety.

16. Decision Making, Capacity & Assessment Does the adult have capacity to make the decision? • Always start with the assumption that an adult has capacity to make decisions. • Consider definition of incapacity. • Refer to Capacity Flowchart. • Record decisions.

17. Decision Making, Capacity & Assessment When to seek advice? • Decisions on significant issues • Adult refuses the services assessed as required • Disagreement or conflict • Line Manager/Legal advice • Medical assessment

18. Powers under the Act • Welfare & Financial Guardianship • Welfare & Financial Intervention Orders • Welfare & Financial Power of Attorney • Access to Funds • Management of Residents Finances • Medical Treatment & Research • s.13ZA Social Work (Scotland) Act 1968 • Deprivation of Liberty

19. Powers under the Act Welfare & Financial Guardianship • Court process • Most restrictive option for adult • Last resort • Complex & ongoing needs • Mental Health Officer • Governance & Law

20. Powers under the Act Welfare & Financial Intervention Order • Court process • One off action or power • Mental Health Officer • Governance & Law

21. Powers under the Act Welfare & Financial Power of Attorney • Granted by the individual • Requires a solicitor or medical practitioner • Individual must have capacity • When does a POA become effective? • Welfare: on incapacity • Financial: on incapacity or prior • Determination of incapacity • Practice Example 1 – (Mary)

22. Powers under the Act Access to Funds • Allows funds to be transferred from an individual’s bank account to a new bank account over 3 years • 3 year budgeting exercise • Detailed record keeping required • Does not apply to DWP benefits

23. Powers under the Act Management of Residents Finances • Residential Care Homes • For sums under £10,000 • Does not apply to DWP benefits

24. Powers under the Act Medical Treatment & Research • Provides authority to treat patients who are incapable of consenting to the treatment in question • Not necessary in emergency situations • Should always be completed when an adult lacks capacity, regardless of other powers held under the Act

25. Powers under the Act Section 13ZA Social Work (Scotland) Act 1968 • Allows the Council to provide Community Care services to an adult who lacks capacity to consent to the provision of those services • Should not be applied where there are formal powers held under the AWI Act • Includes moving an adult into residential accommodation

26. Deprivation of Liberty • Deprivation of liberty must be considered in every case where the adult lacks capacity. • Does the proposal amount to a deprivation of liberty? • Constant control and supervision. • Powers under the AWI Act may be required for a move into supported or residential accommodation. • Practice example 2 (Robbie) and 3 (James).

27. Applying the AWI Powers in practice When to seek advice? • Decisions on significant issues • Adult refuses the services assessed as required • Disagreement or conflict • Deprivation of Liberty • Line Manager/Legal Advice

28. Applying the AWI Powers in practice Common Examples:- • Power of Attorney • Both financial & welfare • Guardianships • Community Care Services provided under s.13ZA

29. Adults with Incapacity (Scotland) Act 2000 Questions