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Adults with Incapacity Act

Adults with Incapacity Act. Improving with Experience. 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’

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Adults with Incapacity Act

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  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to wide variation in use of Part 6 by local authorities September 05 – response to ECHR judgement on ‘Bournewood’ Draft Guidance May 06 for practitioners issued for comment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 Commission’s 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

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