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
Per 100,000
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
02 03
03 04
04 05
05 06
06 07
07 08
08 09
09 10
10 11
0
250
500
750
1000
1250
1500
1750
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%
02
03
05
06
07
08
08
09
10
11
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15
30
45
60
75
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Local Au-thority
Relatives
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
200
400
600
800
1000
1200
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1600
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