Adults with Incapacity Act - The developing local authority role Tony Jevon Social Work Officer Mental Welfare Commission

Changing scene 1 The 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 squeezed Increased 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 2 Pressure on NHS to reduce in-patient beds (further) and act on delayed discharges Increasing 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

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. Social Work & Housing Committee

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

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 Apr 10 - Mar Apr 09 - Mar Apr 08 - Mar Apr 07 - Mar Apr 06 - Mar Apr 05 - Mar Apr 04 - Mar Apr 03 - Mar Apr 02 - Mar 03

Applications for Welfare Guardianship 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%

Approved Welfare Guardianship Private/LA Orders

New Practice Guide “Supervising and supporting welfare guardians” Jointly produced by MWC with SWIA Considers what local authority managers need to know and do Provides social workers with much of the information they will need to fulfil their role Contains 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” GPGPresentation June 2010

Local authority role under AWI Supervise a guardian appointed with welfare powers Consult 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 functions Section (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 2 Self 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