Adults with Incapacity Act

Improving with Experience

Welfare GuardianshipSE 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Draft Guidance May 06 for practitionersissued for comment

When to use the Act

Scottish Law Commission’s intentions Application of the Fundamental Principles Deprivation of liberty – ECHR Article 5

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

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

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

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.

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

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

Factors to consider (cont.)

Effect of changes in the care regime Availability of appropriate less restrictive

alternatives Safety issues Physical abilities of adult

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

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

How Often Is Welfare Guardianship Being Used?

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

0

100

200

300

400

500

600

700

02 03 03 04 04 05 05 06

Extant Welfare Guardianship Orders 2002 - 2006

• 1459 31 Mar 2006

• 1042 31 Mar 2005

• 592 31 Mar 2004

• 261 31 Mar 20030

200

400

600

800

1000

1200

1400

1600

02 03 03 04 04 05 05 06

Who is being placed on Welfare Guardianship?

Approved Welfare Guardianship Applications – 2002- 2005

0

20

40

60

80

100

120

16 - 20 21 - 50 51 - 70 Over 70

Age Group and Gender

MaleFemale

Approved Welfare Guardianship Applications – 2006

61

21

3 26 3

0

10

20

30

40

50

60

70

Applications by Diagnosis %Dementia

Learning Disability

Alcohol Related

Dual LD/MI

Mental Illness

Acquired BrainInjury

Who Is Being Appointed As Welfare Guardian?

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% 0

10

20

30

40

50

60

70

80

Guardians

LocalAuthority

Relatives

Others

Which Local Authorities Are Seeking Welfare Guardianship

Orders?

Local Authority Applications April 2005 – March 2006

0

5

10

15

20

25

30

Per 100k pop over 16

The 10 lowest users per 100KWest Dunbartonshire

Dundee City

Edinburgh, City Of

Inverclyde

East Renfrewshire

Moray

East Dunbartonshire

Midlothian

Renfrewshire

Orkney

Local Authority Applications April 2005 – March 2006

0

5

10

15

20

25

30

Per 100k pop over 16

The 10 highest using per 100K Perth & Kinross

Fife

Glasgow City

Highland

East Ayrshire

Dumfries & Galloway

East Lothian

West Lothian

North Ayrshire

South Ayrshire

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