Adults with Incapacity Act - The developing

local authority role

Tony JevonSocial Work Officer Mental Welfare Commission

Changing scene 1The 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 squeezedIncreased 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

Changing scene 2Pressure on NHS to reduce in-patient beds

(further) and act on delayed dischargesIncreasing 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

Social Work & Housing Committee

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.

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

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LA Gship Orders 10 - 11

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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

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

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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%

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Approved Welfare Guardianship Private/LA Orders 2003 - 2011

1521 10 - 111230 08 - 091125 07 - 08901 06 - 07755 05 - 06531 04 - 05398 03 - 04

03 04 04 05 05 06 06 07 07 08 08 09 10 110

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New Practice Guide

“Supervising and supporting welfare guardians”

Jointly produced by MWC with SWIAConsiders what local authority managers

need to know and do Provides social workers with much of the

information they will need to fulfil their roleContains templates for supervisor sessions

and links to all relevant codes of practice and other sources

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

Local authority role under AWISupervise a guardian appointed with welfare powersConsult 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

• What the law says about the local authority supervisory functionsSection (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.

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

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

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

The Future 2Self 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