Adult support: a new generation

by Adrian Ward

Survey of the important changes to the adult protection regime, and the Adults with Incapacity Act, made by the Adult Support and Protection (Scotland) Act 2007

The Journal, June 2007, page 20

The Adult Support and Protection (Scotland) Act 2007 completed its parliamentary passage on 15 February. Most of its provisions are expected to be brought into force towards the end of the year. One important provision, inserting a new section in the Social Work (Scotland) Act 1968, came into force on 21 March (see panel in downloadable PDF).

The 2007 Act introduces the new adult protection régime in Part 1. It makes significant amendments to adult incapacity law, most of them in Part 2 amending the Adults with Incapacity (Scotland) Act 2000 (“the Incapacity Act”). This article summarises some of these provisions. It does not cover alterations to other legislation, including the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the Mental Health Act”).

The 2007 Act incorporates an unusual amount of amendment to the bill as originally introduced. The Law Society of Scotland’s Mental Health and Disability Committee has had an unusual (perhaps unprecedented) success rate in achieving implementation of its suggestions and response to its concerns. Commendable were the care with which the Health Committee addressed issues raised by the bill, and the responses of the Scottish Executive.

Adult protection: adults at risk

The 2007 Act repeals the existing procedure under s 47 of the National Assistance Act 1948 (as amended) for application to the sheriff to remove persons from the premises where they are, if they are suffering from grave chronic disease, or are aged, infirm or physically incapacitated and living in insanitary conditions, and if they are unable to devote proper care and attention to themselves and are not receiving it from anyone else. The 1948 Act procedure was probably not ECHR compliant, and almost certainly had to go.
The starting point for reform in this area was to replace that section with modern provision for the care and protection of adults who are vulnerable and at risk of harm. There are adults who are vulnerable but neither incapable in terms of the Incapacity Act nor mentally disordered in terms of the Mental Health Act. Even for adults who are incapable or mentally disordered, it is likely that some needs will best be met under the 2007 Act.
Part 1 of the Act commences with principles and a definition of “adults at risk”. The “general principle on intervention” reflects the Incapacity Act. An intervention must provide benefit to the adult which could not reasonably be provided without intervening, and must (of the options likely to fulfil the object of the intervention) be the least restrictive of the adult’s freedom. The mandatory terms of the general principle in s 1 are watered down by the statement that it applies only for the purposes of s 2, which requires public bodies and office holders to “have regard to” the general principle when performing functions under Part 1. They must also have regard to other principles set out in s 2.
There are three elements in the definition of adults at risk. They must be unable to safeguard their own wellbeing, property, rights or other interests. They must be affected by disability, mental disorder, illness or physical or mental infirmity, and in consequence more vulnerable to being harmed than adults not so affected. They must be at risk of harm either because another person’s conduct is causing harm (or is likely to), or because the adult is engaging in conduct which causes self-harm (or that is likely).
The Society made successful representations that the original scope of the bill was too narrow and its language too emotive: thus references to “abuse” were altered to “harm”.

Duties and procedures

Local authorities will have a duty to make inquiries where they know or believe that an adult is at risk and they might need to intervene to protect the adult. The authority will have powers to investigate, including by visits, interviews, medical examinations and examination of records. There are procedures for assessment orders, removal orders and banning orders. Banning orders provide the option of removing the person creating the risk of harm from where the adult lives, rather than always removing the adult from the risk. There are provisions for temporary banning orders, and powers of arrest for breach of a banning order.

The sheriff must not make any of the above types of order “if the sheriff knows that the affected adult at risk has refused to consent to the granting of the order”, and likewise no-one else must take any action for the purposes of carrying out or enforcing an order if that person knows that the affected adult at risk has refused to consent to the action. However, both the sheriff and the person taking action may ignore a refusal to consent if they reasonably believe that the affected adult at risk has been unduly pressurised to refuse consent.

There are procedures for obtaining warrants for entry, and for dealing with urgent cases. Each council must establish an adult protection committee, and the Scottish Ministers must prepare a code of practice, which is awaited. The Act contains a range of supplementary provisions.

Incapacity: the 2000 Act amended

In the remainder of this article “Part” refers to a Part of the Incapacity Act. In Part 1, a new principle is introduced which is applicable only to sheriffs determining applications or other proceedings under the Incapacity Act. The sheriff must take account of the wishes and feelings of the adult so far as expressed by a person providing independent advocacy services (as defined in the Mental Health Act). Also in Part 1, any person claiming an interest (in addition to the adult) will be able to apply to displace the nearest relative as statutorily defined, and the court will have an additional power to make any order which it thinks fit in that regard.

In Part 2, significant changes are made to the power of attorney regime. Where continuing powers are to be operable only after loss of relevant capacity, the document must state that the grantor has considered how incapacity is to be determined. All welfare powers of attorney must contain a similar statement (because welfare powers can only be operated after loss of relevant capacity, or after the attorney reasonably believes that relevant capacity has been lost).

At present, a combined power of attorney (i.e. a power which is both continuing and welfare) requires two certificates. Under the 2007 Act, a single certificate will suffice. Most certificates are granted by solicitors. The Incapacity Act did not define “solicitor”, though the Public Guardian interpreted this as meaning a Scottish solicitor only. The 2007 Act amends the requirement to “a practising solicitor”, defined as a practising Scottish solicitor. That provides clarity, but not a solution to the problem of a person not currently in Scotland desiring to grant a Scottish power of attorney. It is understood that the Public Guardian considers that the interview by the certifier need not be a face to face interview. If necessary, it can be conducted by telephone over a distance. The Society tried unsuccessfully to have the parliament consider a further amendment permitting certification by a foreign lawyer who had discussed the requirements with a practising Scottish solicitor. It is hoped that the minister might now use his regulatory powers to cover this.

At present, if the certifier does not certify from his own knowledge, he must consult at least two others and name them in the certificate. Under the 2007 Act it will be sufficient to consult and name one person only.

The Incapacity Act provides that a welfare power of attorney remains in force notwithstanding the bankruptcy of the grantor or attorney. To remove doubt about continuing powers of attorney, the 2007 Act declares that it has always been the case, and continues to be, that bankruptcy of grantor or attorney ends the attorney’s authority under a continuing power of attorney. There is no declaration that the authority to act resumes upon discharge from bankruptcy.

The Incapacity Act lacked express procedure for revocation by the grantor. The 2007 Act introduces such a procedure. The bill originally proposed simply notification in writing. The Society urged that the risks in relation to revocation could be similar to those in relation to granting, and required similar protections. This was accepted. The notice of revocation to the Public Guardian must now incorporate a similar certificate to the certificate required for original grant of the power of attorney. The revocation takes effect upon registration by the Public Guardian, but a person acting in good faith in ignorance of the revocation will not incur any liability, nor shall any title to heritage acquired by such a person be challengeable on that ground alone.

Access to funds

Part 3, dealing with access to funds, is entirely replaced. New features include procedures for the Public Guardian to authorise access to information about funds; for intromissions with a second account, and more flexibility in transferring sums among accounts; for multiple applications; for appointment of joint and reserve withdrawers, and of corporate withdrawers; and for variation of the certificates of authority. The counter-signatory will require to know only the proposed withdrawer (not both the withdrawer and adult, as at present, which can cause difficulty). The Public Guardian may reduce or extend the period of validity of a withdrawal certificate. There is a simplified renewal procedure; and a simplified procedure for transition from guardianship – the requirement for counter-signature is disapplied and the Public Guardian may disapply the requirement for a medical certificate. The new features widen the scope and should increase the use of Part 3 procedures. The s 1 principles, and s 58(1)(b), will require courts to refuse guardianship applications where Part 3, as now reformed, will meet needs adequately.

Renewal procedures

Part 6 is amended to incorporate my suggestion of a simplified renewal procedure. For renewals, only one medical report will be required. It must be provided by an approved medical practitioner (or other “relevant medical practitioner” – see below). For financial guardianship, the only other report required will be from the Public Guardian, concerning the applicant’s conduct as financial guardian, and the applicant’s suitability to continue. For welfare guardianship, a report from the mental health officer will still be required. The sheriff may dispense with a hearing. This procedure should make renewal less burdensome, and perhaps reduce the number of unduly lengthy initial appointments.

All transitional appointments will expire two years after the new provisions come into force, if not renewed before that. The new simplified renewal procedure will be applicable. In response to concerns by the Society that some adults may lose their guardianships because their guardians are unaware of this change, a successful amendment requires the Public Guardian to notify financial guardians of the new provisions, and local authorities to notify welfare guardians; and in response to concerns by the Society about the status of joint guardians appointed under the Incapacity Act to transitional guardians, it has been clarified by amendment that the relevant new provisions will apply also to such joint guardians.

Other Part 6 matters

Caution will no longer be mandatory. In relation to both intervention orders and guardianship orders relating to property or financial affairs, the Incapacity Act will provide that the sheriff “may” order caution, rather than that he “shall” do so. It will also be possible to give “other security”.

On managing the timetable of Part 6 applications, medical reports will be valid even where the medical examination of the adult was carried out more than 30 days before the application was lodged, provided the sheriff is satisfied that, since the examination was carried out, there has been no change in circumstances which might be relevant to matters set out in the report. The bill as introduced referred to a requirement that the adult’s condition is unlikely to have improved, but the Society pointed out successfully that this was not the appropriate test: the adult’s condition could have improved, but capacity could remain equally impaired in relation to circumstances and needs. This change does not apply to the “third” report, with consequences for practice in the timing of giving notice to the local authority or otherwise initiating preparation of the third report.

It will be possible to commence guardianship applications three months before a young person attains the age of 16, though guardianship will only commence from that age. This provision is designed to avoid a gap between child guardianship and adult guardianship where capacity is significantly impaired.

There will be two alternatives to the approved medical practitioner’s report. First, where the adult is not present in Scotland the relevant report may be provided by a person holding qualifications equivalent to those of an approved medical practitioner, who has consulted the Mental Welfare Commission for Scotland about the report. Secondly, a report may be provided by “a person of such other description as the Scottish Ministers may prescribe”. The “approved medical practitioner” and these alternatives are encompassed within the new definition of “relevant medical practitioner”, who must now provide one of the medical reports (and also the only medical report under the new renewal procedure).

Section 70 of the Incapacity Act contains a procedure under which the court can make an order ordaining the adult, or any person named in the order, to implement a decision of a welfare guardian. In future the sheriff will be able, on cause shown, to disapply the intimation requirement and the corresponding right to object within a prescribed period. In some such situations the new adult protection powers under Part 1 of the 2007 Act might be the better option.

Hitherto interim guardianship has been limited to three months. Sheriffs will be able to grant interim guardianships for three months or for a longer period up to a maximum of six months.

The discharge powers of the Public Guardian in relation to financial guardianships under s 72(1) of the Incapacity Act are extended to include cases where the guardianship order has expired. The recall powers of the Mental Welfare Commission under s 73(3) of the Incapacity Act will now be limited to mental disorder cases. A new procedure is created for recall of guardianship by the local authority where the chief social work officer is guardian. Where a guardian dies, the guardian’s personal representative – if aware of the guardianship – will be required to notify the Public Guardian, who in turn will require to notify the adult, the local authority and (in mental disorder cases) the Mental Welfare Commission; to register particulars; and to issue a fresh certificate to any surviving joint guardian, and/or to any substitute guardian.

Medical consent

An error in the Incapacity Act regarding consent by guardians, attorneys etc has been rectified, though only after the Society pointed out that the original drafting of the bill would have made matters worse. Consent by guardians etc will now be excluded only by regulations expressly excluding particular treatments (not by regulations mentioning them, whether to exclude or include).

Adrian D Ward is convener of the Society’s Mental Health and Disability Committee and author of Adult Incapacity, published by W Green

COMMUNITY CARE SERVICES: THE 1968 ACT

The 2007 Act, by amendment at a late stage of procedure, introduced into the 1968 Social Work (Scotland) Act a new method of authorising certain welfare interventions which has direct relevance to practice under the Incapacity Act, because it introduces a new situation in which guardianship (or an intervention order) may no longer be required when such an order might well have been required previously. This follows much debate and discussion about “When to invoke the Act?”

(i.e. the Incapacity Act), a topic which could occupy a lengthy article in itself.

The new provision applies where a local authority has decided that an adult’s needs call for provision of a community care service and the adult is incapable in relation to decisions about the service. In that situation the local authority “may take any steps which they consider would help the adult to benefit from the service”, including (without prejudice to that generality) moving the adult to residential accommodation provided under the 1968 Act. The first four principles in s 1 of the Incapacity Act apply. The authority under the 1968 Act is disapplied where a guardian or welfare attorney has relevant powers, an intervention order has been granted relating to the proposed steps, or an application has been made (but not yet determined) for an intervention or guardianship order relating to the proposed steps.

This section will require to be read along with s 5 of the 1968 Act, which requires local authorities to act under the general guidance of Scottish Ministers and to comply with their directions. The relevant guidance is entitled “Guidance for Local Authorities (March 2007) Provision of community care services to adults with incapacity”. It sets out procedures and criteria which in effect permit use of this new procedure under the 1968 Act only in situations which are genuinely non-controversial, and where the adult is entirely compliant. It would appear to follow from this that it will never be appropriate for a sheriff to refuse an application under Part 6 of the Incapacity Act on the grounds that the new procedure under the 1968 Act is available, because under the guidance the 1968 Act procedure will be inapplicable where there is such disagreement as results in someone who claims an interest making application under Part 6.